Preparatory Commission for the Organisation for the Prohibition of Chemical Weapons

Document number: PC-XI/B/WP.8
Document date: 23 June 1995
Original: ENGLISH
Corrigenda () have been inserted at the relevant places!

Eleventh Session (24-28 July 1995)

EXPERT GROUP ON CONFIDENTIALITY

EIGHTH REPORT

1. Introduction

1.1 In accordance with the Plan of Activities and Schedule of Meetings annexed
to the Report of the Tenth Session of the Commission (PC-X/23), the Expert
Group on Confidentiality held informal meetings on 10 - 11 April and 16 May
1995. The Expert Group held its eighth formal meeting on 17 May 1995, and
resumed this meeting on 16 and 23 June 1995. All the above informal and formal
meetings took place in The Hague.

1.2 Mr. Antony Taubman of Australia continued to serve as Chairman of the
Group.

1.3 The work of the Group was facilitated by material provided by the
delegations of the Russian Federation, Switzerland and the United States of
America.

2. Focus of the Group's work

2.1 The Group considered the following issues as tasked for it by the
Commission in the Plan of Activities and Schedule of Meetings annexed to the
Report of the Tenth Session (PC-X/23):

Discuss the States Parties' possible exercise of national
jurisdiction in the event that immunity from jurisdiction is waived by the
Director-General in the case of a serious breach of confidentiality by a staff
member of the Technical Secretariat, including the possibility of concurrent
jurisdiction.

Discuss any further proposals relating to the general issue of the
application of national jurisdiction to natural or legal persons who have
breached confidentiality.

Discuss any further proposals that may be made concerning
compensation for losses caused by breach of confidentiality.

Discuss the composition and operating procedures of the Commission
for the Settlement of Disputes Relating to Confidentiality (the
"Confidentiality Commission").

Finalise an integrated draft of the OPCW Policy on Confidentiality.

2.2 In the absence to date of any further proposal relating to the second and
third of the above tasks and the brief amount of time available, the Group
concentrated its efforts on the first, fourth and fifth of these tasks.

3. Exercise of national jurisdiction by States Parties

The Group further discussed this issue, distinguishing between the general
policy level and the practical implementation level. It proposed to record the
issue at a general level in the relevant section of the draft OPCW Policy on
Confidentiality, and to facilitate further practical consideration of the issue
by the Commission.

4. Compensation for losses caused by breach of confidentiality

The Group had a general discussion on this issue, noting that no further
proposal had been made on the matter, and agreed that further study and review
by the Secretariat and in capitals would be necessary before it is considered
further at expert group level.

5. Confidentiality Commission

5.1 The Group continued its discussion of rules governing the composition and
operating procedures of the Confidentiality Commission on the basis of the
propositions recorded in its Seventh Report (PC-X/B/WP.7, paragraph 7). The
Group agreed on draft recommendations for the rules governing the composition
and operating procedures for submission to the First Conference of the States
Parties and for inclusion into the draft OPCW Policy on Confidentiality, but
noted that further work would be required in drafting detailed operating
procedures to put these rules into practical effect.[1]

5.2 Several delegations expressed the view that the composition of the
Confidentiality Commission should in no way be considered to set a precedent
for the composition of any other subsidiary organ of the Conference of the
States Parties.

6. Finalise an integrated draft of the OPCW Confidentiality Policy

6.1 The Group agreed upon material relating to the following elements of the
draft OPCW Policy on Confidentiality:

Part IV Basic Responsibilities on Confidentiality

Part VIII Administration

Part IX [[section]]2 Rules Governing the Commission for the Settlement of
Disputes Related to Confidentiality ("the Confidentiality Commission")

Part IX [[section]]3 The Role of States Parties in Relation to Breach
Procedures

Part X Annual Report on the Implementation of the Regime Governing the
Handling of Confidential Information by the Secretariat

Part XI Amendment Procedure

6.2 The Group also reviewed and endorsed an integrated compilation of the
elements of the draft OPCW Policy on Confidentiality agreed earlier (Annex to
PC-VI/B/WP.1, Annex to PC-VI/B/WP.15, Annex to PC-X/B/WP.2, Annex I to
PC-VII/B/WP.8, and Annex II to PC-VII/B/WP.8, incorporating elements on:
introduction; general policy; information and confidentiality; classification
system for confidential information; general principles for handling and
protection of confidential information; release of information; and breach
investigation procedure). This compilation incorporated the minimum number of
changes necessary to ensure editorial consistency between the various elements
and a consistent numbering and use of basic terms.

6.3 The Group accordingly compiled a combined draft OPCW Policy on
Confidentiality resulting from these discussions and proposed it for
consideration by Working Group B for forwarding to the Commission at its
Eleventh Session for consideration and adoption. This combined draft is
annexed to this Report.

6.4 As this draft Policy deals with the operations of the Organisation itself
and with its relationship with States Parties, it does not establish or
prescribe specific internal State Party measures that may be undertaken in
pursuance of the objectives of the Convention in relation to confidentiality or
for the implementation of specific States Parties' responsibilities in this
regard such as the application of national jurisdiction or the provision of
compensation in the event of a breach. The Group observed that, if necessary
or desirable, such specific internal State Party measures or specific
responsibilities of States Parties might also be referred to and further
developed in bilateral agreements or in other implementation arrangements
between the Organisation and States Parties. The Group noted the importance of
credible and reliable sanctions in the event of any serious breach of
confidentiality.

7. Further work

7.1 The Group noted that any approval of the draft OPCW Policy on
Confidentiality would not lessen the importance and the urgency of the three
remaining tasks of the Group (tasks 1, 2 and 3 in subparagraph 2.1 above),
which it agreed to take up at its next meeting scheduled by the Commission.
The Group recognised that continued detailed study on these issues would be
necessary before their resolution and requested the Secretariat to continue
such study and its Chairman to continue active informal consultations in
advance of any future meeting.

7.2 The Group also noted the desirability of work commencing during the
preparatory phase on drafting detailed operating procedures in advance of the
first meeting of the Confidentiality Commission, and requested the Secretariat
to commence preparing a preliminary draft on the basis of the agreed rules
governing the operating procedures.[2]

8. Recommendations

The Group recommended that:

(a) Working Group B consider the annexed draft OPCW Policy on Confidentiality
and submit it to the Eleventh Session of the Commission for consideration and
adoption and for a decision to apply provisions of the draft OPCW Policy on
Confidentiality, mutatis mutandis, to the work of the Preparatory
Commission;

(b) Working Group B recommend that the Commission renew its request to Member
States and the Secretariat to study the possible exercise of national
jurisdiction in the event that immunity from jurisdiction is waived by the
Director-General in the case of a serious breach of confidentiality by a staff
member of the Technical Secretariat, including the possibility of concurrent
jurisdiction;

(c) Working Group B recommend that the Commission encourage Member States to
continue to study the general issue of the application of national jurisdiction
to natural or legal persons who have breached confidentiality;

(d) Working Group B recommend that the Commission encourage Member States and
the Secretariat to continue study of the issue of compensation for losses
caused by breach of confidentiality;

(e) the Chairman of this Expert Group continue to work with interested
delegations in active informal consultations with a view to resolving the
outstanding issues 1, 2 and 3 cited in subparagraph 2.1 above; and

(f) the Secretariat commence preparing a preliminary draft of operating
procedures for the Confidentiality Commission.

FOOTNOTE

The delegation of India indicated that it had reservations in relation to this subparagraph.

The delegation of India indicated that it had reservations in relation to this subparagraph.

Annex

DRAFT OPCW POLICY ON CONFIDENTIALITY

Table of contents

I. Introduction

II. General Policy

III. Information and Confidentiality

IV. Basic Responsibilities on Confidentiality

V. Classification System for Confidential Information

VI. General Principles for Handling and Protection of Confidential
Information

VII. Procedures for the Release of Information by the OPCW

VIII. Administration

IX. Breach Procedures

IX.1 Breach Investigation Procedures

IX.2 Rules Governing the Commission for the Settlement of Disputes Relating
to Confidentiality ("the Confidentiality Commission")

IX.3 The Role of States Parties in Relation to Breach Procedures

X. Annual Report on the Implementation of the Regime Governing the Handling
of Confidential Information by the Secretariat

XI. Amendment Procedure

Glossary:

`The Convention': The Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on their
Destruction

`The Confidentiality Annex' or `CA': The Annex on the Protection of
Confidential Information, annexed to the Convention

`The Organisation' or `The OPCW': The Organisation for the Prohibition of
Chemical Weapons, established under Article VIII, paragraph 1 of the
Convention

`The Conference': The Conference of the States Parties established under
Article VIII, paragraph 4 of the Convention

`The Secretariat': The Technical Secretariat established under Article VIII,
paragraph 4 of the Convention

'The Confidentiality Commission': The Commission for the settlement of
disputes related to confidentiality cited in paragraph 23 of the
Confidentiality Annex

PART I

INTRODUCTION

This document sets out the basis of the Organisation's policy for
protecting confidentiality throughout activities related to the implementation
of the Convention, for classifying and handling confidential information, and
for dealing with breaches of confidentiality.

A policy for confidential information is essential to the work of the
Organisation because of the intrusive verification measures which are aimed at
promoting confidence in compliance with the Convention while respecting States
Parties' legitimate concerns about the possible disclosure of sensitive
information. Credible verification entails receptiveness on the part of States
Parties and a level of intrusiveness in verification activities. The need for
disclosure of appropriate information to demonstrate compliance with the
Convention should be matched by credible reassurances for States Parties that
proper measures are taken to prevent disclosure of information not relevant to
the Convention and that any confidential information, once disclosed, will be
appropriately protected.

Consequently, in defining States Parties' rights and obligations, the
Convention embodies a balance between that disclosure necessary to enhance
confidence in compliance with the Convention, and the prevention of disclosure
of information not relevant to the Convention, in order to protect national
security and proprietary rights, taking into account constitutional
obligations. These two objectives are not necessarily in conflict; on the
contrary, a credible and effective process of verification can be achieved
which actively and integrally protects confidentiality. The Convention text
provides practical assurances that all confidential information will be
appropriately protected; and that verification procedures will seek to prevent
the disclosure of information not related to verification of compliance with
the Convention.

PART II

GENERAL POLICY

Paragraph 5 of Article VIII of the Convention provides the basis of the
obligations of the Organisation to respect confidentiality:

"The Organisation shall conduct its verification activities provided for under
this Convention in the least intrusive manner possible consistent with the
timely and efficient accomplishment of their objectives. It shall request
only information and data necessary to fulfil its responsibilities under this
Convention. It shall take every precaution to protect the confidentiality of
information on civil and military activities and facilities coming to its
knowledge in the implementation of this Convention and, in particular, shall
abide by the provisions set forth in the Confidentiality Annex."

Paragraph 6 of Article VII of the Convention establishes the obligation on
each State Party to:

"treat as confidential and afford special handling to information and data that
it receives in confidence from the Organisation in connection with the
implementation of this Convention. It shall treat such information and data
exclusively in connection with its rights and obligations under this Convention
and in accordance with the provisions set forth in the Confidentiality
Annex."

These basic requirements are elaborated in a number of other provisions of
the Convention, especially in the Confidentiality Annex and in the provisions
detailing verification procedures (e.g. paragraph 10 of Article VI; paragraphs
56 and 62, Part II of the Verification Annex and paragraph 48, Part X of the
Verification Annex). From this basis, the fundamental elements of the
Organisation's Policy on Confidentiality are:

(a) only that information necessary for the timely and efficient carrying out
of its responsibilities under the Convention shall be sought and required; and
requirements for information to which the Organisation shall be given access by
a State Party shall be specified as precisely as possible;

(b) verification activities shall be designed, planned and carried out so as to
avoid unnecessary disclosure of confidential information and so as to seek to
prevent disclosure of such information not related to compliance with the
Convention, consistent with effective and timely discharge of verification
obligations under the Convention;

(c) confidential information not relevant to the Convention shall not be
sought, recorded or retained in the course of verification or other activities,
without prejudice to an inspected State Party's right to request such a
disclosure in accordance with the Convention. Once disclosed, it shall be
protected, shall not be further disseminated, and shall be appropriately
disposed of;

(d) systematic procedures for limiting the dissemination of and access to
information after information is collected and classified as confidential shall
be established, monitored, and adhered to;

(e) information obtained in connection with the implementation of the
Convention shall not be published or otherwise released unless with explicit
authority and in accordance with the release procedures outlined in Part VII of
this policy; and

(f) staff selection and training, and staffing policy and regulations, shall
take into account the need to ensure that all staff members of the Secretariat
meet the highest standards of efficiency, competence and integrity.

PART III

INFORMATION AND CONFIDENTIALITY

This Part sets out guidelines for developing a practical understanding of
the scope of the terms 'information', 'confidential information' and
'confidentiality'. The Convention sets out no definitive account of how these
terms are to be applied, and it is clear that they are to be determined in an
operational context consistent with the implementation of the Organisation's
and States Parties' various responsibilities under the Convention.

The Organisation will carry out its responsibilities greatly depending on
the information obtained through its verification activities and provided by
States Parties. Thus, information will be coming into the Organisation's
possession or to a staff member of the Organisation in a continuous
input-output pattern of acquiring, processing and producing further necessary
information.

In view of the integral role of confidentiality in all the Organisation's
activities, information can generally be considered in operational terms,
covering its characteristics, its means of acquisition and storage, and media
for its processing and transmission.

Scope of 'information'

The term 'information' must be understood in a very broad
sense. Information is recognised by its capacity or potential to provide,
either directly or indirectly, data or any knowledge, regardless of its
physical or intangible character or make-up.

It further applies to any means of acquiring, transmitting or retaining
knowledge or data which may be perceived, acquired, derived or retained by any
individual or by the Organisation including by its personnel or equipment in
the implementation of the Convention.

The term 'data' appears in several contexts in the Convention.
Generally, 'data' carries the implication of information in a particular
structure or format, such as the information embodied in a national
declaration. However, in construing the text from the point of view of
confidentiality, there is no substantial distinction between 'information' and
'data.' Hence, for the purposes of this policy, the term 'information' will be
considered to subsume any references to 'data.' 'Information' or 'data' may
include information which is incorrect, false or inaccurate.

To illustrate the scope of its application, 'information' includes, but
is not limited to:

- data stored or displayed on electronic, magnetic or any other physical
medium;

- information expressed in relative or absolute terms; and

- samples and other bodies of chemicals including chemicals carried by earth,
dust, filters and sampling, and equipment including sampling, analysis and
safety equipment. Samples contain information, and through sample analysis can
provide further information.

Information can be acquired or transmitted through any medium of
communications or human sense. Information can be obtained and transmitted due
to the mere presence of persons on site or through access granted to them.
Thus, equipment, objects, clothes and other personal belongings could become
sources of information.

Operational definitions of some forms of information

The following operational definitions, which cover only some forms of
information, apply for the purpose of guidelines for handling and protection of
information under this Policy. It is to be understood that the following
definitions are flexible enough to ensure that handling guidelines can be
applied effectively and practically:

- 'Document' could extend to a variety of physical items displaying
information or data;

- 'Computer material' includes any computer storage and processing
medium, such as disks, tapes and diskettes. This term also covers portable
computers, which may be used to record information during an on-site
inspection;

- 'Audio-visual material' includes audio and video tapes, developed and
undeveloped photographic films including the negatives of still photographs and
the positives. (Positive prints of still photographs may be considered also as
documents); and

- 'Sample' includes a sample's collection medium and any further
information acquired or derived from analysis.

In the application of general operating guidelines to particular items of
information falling under these definitions, there may be overlapping reference
(for instance, a transparency for overhead projection may be handled as a
document or as audio-visual material, and a computer printout may be handled as
a document or as computer material).

Confidentiality of information under the Convention

A basic principle on confidentiality, set down in subparagraph 2(c) of the
Confidentiality Annex, is that no information obtained by the Organisation in
connection with the implementation of the Convention shall be published or
otherwise released, except as specifically provided for.

Specific procedural guidelines in subparagraph 2(a) of the Confidentiality
Annex provide that information shall be considered confidential if:

(a) it is so designated by the State Party from which the information was
obtained and to which the information refers; or

(b) in the judgement of the Director-General, its unauthorised disclosure could
reasonably be expected to cause damage to the State Party to which it refers or
to the mechanisms for implementation of the Convention.

The following factors shall be weighed and carefully balanced by the
Director-General or his[*] delegate in
determining confidentiality of information:

- the potential of its disclosure causing damage to a State Party, any other
body of a State Party, including a commercial firm, any national of a State
Party, or to the Convention or the Organisation;

- the potential of its disclosure offering particular or selective advantage to
an individual, a State, or any other body, including a commercial firm;

- the basic requirement for effective verification of compliance; and

- benefits stemming from the dissemination of general information regarding the
implementation of the Convention, in order to promote its acceptance and
credibility.

In determining whether the information it is providing to the Organisation
contains confidential information, a State Party could also consider the above
factors. The designation of information as confidential shall not undermine
the obligation for a State Party to demonstrate compliance with the Convention
and shall not be used by a State Party to conceal non-compliance. Furthermore,
a State Party cannot prevent the dissemination of information which in
accordance with the Convention shall be transmitted in a specified manner to
States Parties upon request or routinely.

Once information has been determined to contain confidential information,
it will be necessary to specify the level of sensitivity and scope of access to
it. This will be normally done through a system of classification which is set
out in Part V of this Policy.

Relationship of information to the Convention

The relationship of information to the purposes of the Convention can have
implications for how confidentiality measures will apply to that information.
Three significant distinctions can be discerned in the implementation of the
Convention:

- information pertinent to the Organisation to fulfil its responsibilities
under the Convention or provided by States Parties to fulfil their obligations
under the Convention;

- information not related to the aims of the Convention, to which an inspected
State Party grants access to demonstrate compliance with the Convention, or
which it incidentally discloses in the course of verification activities; and

- information, including sensitive information, which is not related to the
aims of the Convention, and to which an inspected State Party denies access
consistent with its rights and obligations under the Convention.

Verification procedures and activities need to be guided by these
distinctions. However, a judgement as to the relationship of information to
the purposes of the Convention could be determined operationally, as the
characterisation of information in this way is greatly dependant on individual
contexts and circumstances. Obligations to protect confidentiality will be
set in relation to information described under each of these distinctions.

1.2.4 The Director-General may initiate requests for States Parties to provide
"details on the handling of information provided by the Organisation" (CA,
(A)4), and consult with States Parties on the form and timing of such requests
in accordance with any guidelines set by the Conference. The Director-General
could, for instance, request regular reports from all States Parties on their
handing of confidential OPCW information.

1.3 Responsibilities of the Secretariat

1.3.1 The basic responsibilities of the Secretariat concerning confidentiality
derive essentially from the responsibilities of the Organisation and of the
Director-General. However, in the practical implementation of the Convention,
the definition, conduct and monitoring of the responsibilities of Secretariat
staff to safeguard confidentiality are of crucial importance. Particular
obligations apply to staff of the Secretariat through their involvement in
verification activities and their consequent access to confidential
information, both civil and military, which will include information disclosed
by a State Party in pursuance of CWC obligations, as well as sensitive
information not relevant to the aims of the Convention in the event that such
sensitive information is disclosed.

1.3.2 In addition to the broader obligations already outlined, the Secretariat
has the following specific responsibilities:

(a) through the appropriate unit, to evaluate all data and documents it obtains
to determine whether confidential information is included;

(b) to establish within a formal position description a specification of the
scope of access to confidential information needed for each staff position;

(c) to undertake secrecy agreements with each staff member and to undertake
secrecy agreements with authorised bodies outside the Organisation, as
necessary;

(d) to maintain a continuing programme of training and awareness for all staff
on confidentiality issues, and to monitor each employee's record on protecting
confidential information as an explicit element of performance evaluation;

(e) to advise a State Party of a proposed clearance of an employee for access
to confidential information that refers to activities on the territory or in
any other place under the jurisdiction and control of that State Party, not
less than thirty days before access is granted; and

(f) to handle and store confidential information in a form that precludes
direct identification with the facility it refers to, as far as this can be
done consistent with effective verification.

1.3.3 The responsibilities of individual staff members are further defined by a
secrecy agreement which must be executed by each employee.

1.4 Responsibilities of the inspection team

1.4.1 Particular responsibilities of members of an inspection team stem from
the following:

(a) inspectors on site may have access to confidential information;

(b) the inspection team must negotiate with the inspected State Party on
certain matters related to confidentiality that require agreement;[2] and

(c) the inspection team is guided by its mandate, draws up an inspection plan,
and must decide on specific measures to be employed during the inspection.

1.4.2 Inspection teams shall therefore:

(a) conduct inspections in the least intrusive manner possible consistent with
the effective and timely accomplishment of their mission;

(b) plan the inspection and take into consideration proposals which may be made
by the State Party receiving an inspection, at whatever stage of the
inspection, to ensure that sensitive equipment or information, not related to
chemical weapons, is protected;

(c) fully respect the procedures designed to protect sensitive installations
and to prevent the unauthorised disclosure of confidential data;

(d) request only the information and data which are necessary to fulfil the
inspection mandate;

(e) prepare an inspection report which only contains facts relevant to
compliance with the Convention;

(f) protect and prevent further dissemination of confidential information not
relevant to the Convention to which inspection teams have access in the course
of on-site inspections; and

(g) respect an inspected State Party's denial of access to sensitive
information consistent with the State Party's rights and obligations.

2.1 Responsibilities of the States Parties

2.1.1 States Parties must treat information received from the Organisation in
accordance with its level of sensitivity as expressed in its classification
category. The way this obligation is carried out will naturally differ between
States Parties, but as a rule this information should be given at least the
same level of protection as that afforded to information with comparable
national classification or comparable confidentiality under national legal
systems. States Parties shall establish or adapt suitable means of handling
and protection of OPCW confidential information in a manner consistent with the
principles set out in Part VI of this Policy.

2.1.2 Each State Party must provide on request details on the handling of
information provided to it by the Organisation. This procedure is aimed at
promoting general reassurance among States Parties that confidentiality is
effectively safeguarded. The responses of States Parties to such requests
should at least confirm that standards for handling information are in
accordance with subparagraph 2.1.1 above.

2.1.3 In safeguarding confidentiality of information, States Parties must
adhere to the essential obligation to demonstrate compliance with the
Convention in accordance with its verification provisions.

2.1.4 Each State Party must cooperate with and support, to the extent possible,
the Director-General in investigating breaches or alleged breaches of
confidentiality, and in taking appropriate action in accordance with the
elaborated breach procedures should an investigation determine that a breach
has occurred. This obligation may include provision of details on the
handling of information provided to the State Party by the Organisation and, if
necessary, the State Party's participation as one of the disputing parties
before the "Commission for the settlement of disputes related to
confidentiality" in the event of the breach going before that body.

2.2 Responsibility of observers

2.2.1 When, in the course of a challenge inspection, the inspected State Party
agrees to grant access to an observer in accordance with paragraph 55 of Part X
of the Verification Annex, the observer may have access to some confidential
information and will accordingly incur particular responsibilities in relation
to its handling and protection. Thus the handling and protection of
confidential information by the observer must be fully consistent with all
relevant provisions of the Convention, including the Confidentiality Annex, and
with this Policy, particularly the detailed handling provisions of Part VI of
this Policy. As Article IX, subparagraph 12(a) of the Convention indicates
that the observer is a "representative" of the requesting State Party, such
information is also subject to the provisions of Article VII, paragraph 6, in
respect of both the requesting State Party and the observer as its
representative in particular, and hence shall be treated as confidential and
afforded special handling.

2.2.2 Hence the requesting State Party shall be fully responsible for and shall
take all necessary measures to ensure that the observer complies with and is
individually bound by all relevant provisions of this Policy, as well as to
ensure that effective legal remedies and penalties are available in the event
of the observer breaching confidentiality, comparable to the measures taken in
the event of an official of that State Party breaching confidentiality. Once
any confidential information is disclosed to or acquired by the observer, in
addition to and without diminishing the observer's own individual
responsibility, the requesting State Party also becomes responsible for the
handling and protection of that information in accordance with the Convention
and with this Policy. For his part, the observer is to adhere to and be bound
by all provisions of this Policy relating to the protection of confidential
information, and shall not take any unauthorised action in this regard.

FOOTNOTE

Set out in Part IX below.

For instance in accordance with paragraph 46 of Part X of the Verification Annex and with paragraph 14 of the Confidentiality Annes.

PART V

OPCW CLASSIFICATION SYSTEM FOR CONFIDENTIAL INFORMATION

1. Categories of confidential information

1.1 All information acquired or produced by the Organisation and its
constituent elements which is determined to be confidential must be given a
classification, based on established categories which correspond to the level
of sensitivity of confidential information. In its application, the
classification system will not impair the requirement for effective
verification of compliance with the Convention, and it should be capable of
providing, as necessary, for the release of general information, in
adequately desensitised form, regarding the implementation of the Convention,
in order to promote its acceptance and credibility.

1.2 The essential factors to be considered in determining the level of
sensitivity of an item of information are as follows:

(a) the degree of potential damage which its disclosure could cause to a State
Party, any other body of a State Party, including a commercial firm, or to any
national of a State Party, or to the Convention or the Organisation; and

(b) the degree of potential particular or selective advantage its disclosure
could offer to an individual, a State, or any other body, including a
commercial firm.

These factors correspond to the factors used in determining the
confidentiality of information.

1.3 Based on these guiding factors, and the specific classification criteria
set out below, confidential information shall be classified according to the
following categories, in increasing order of sensitivity:

. OPCW RESTRICTED

. OPCW PROTECTED

. OPCW HIGHLY PROTECTED

The prefix 'OPCW' in the names of these categories is used
purely to facilitate handling of classified material, in clearly identifying
classifications as being those applied by the Organisation and in avoiding any
conflict or misunderstanding with distinct national classification systems.
The use of this prefix does not imply any particular scope of dissemination.

1.4 There is a distinction between a classification category (which is based on
the sensitivity of information) and the scope of dissemination of information
(which is based, for instance, on the subject matter, the need-to-know
principle, and the particular purpose for which the information is to be used).
Level of classification willnot prevent the dissemination of
information as specifically required by the Convention, including under
subparagraph 2(b) of the Confidentiality Annex.

1.5 Information not falling into any of the above-mentioned categories shall be
considered not classified and may be marked appropriately. Information which
is not classified will be subject to appropriate protection from release by the
Organisation and by States Parties, unless specifically cleared for release in
accordance with the separately defined release procedures.

1.6 The level of protection afforded to confidential information shall be
linked to the level of sensitivity as indicated by its classification category.
Each State Party and the Organisation shall protect OPCW classified information
originating both from within the Organisation and from States Parties in
accordance with its level of sensitivity as expressed by its classification
category.

Classification category: OPCW RESTRICTED

CRITERION:

1.7 This category comprises information of which the unauthorised
disclosure would be prejudicial to the effectiveness or credibility of the
Convention, or prejudicial to the interests of a State Party or of a commercial
or governmental body or of a national of a State Party.

EXAMPLES:

1.8 Unless specified otherwise, due to the greater or lesser sensitivity of the
data in question, the following forms of information might be classified
OPCW RESTRICTED when they are acquired or generatedby any means
by the Organisation:

(a) the initial and annual reports and declarations provided by States Parties
under Articles III, IV, V and VI and in accordance with the Verification Annex,
where these documents are considered byoriginating States Parties as
being of this level of sensitivity;

(b) general reports on the results and effectiveness of verification
activities; and

(c) information to be supplied to all States Parties in accordance with other
provisions of the Convention.

1.9 Other information to be classified and handled as OPCW RESTRICTED
may include: routine confidential correspondence between States Parties and the
Secretariat, and internal working documents of the Organisation which are not
of particular sensitivity. This may also include information relating to the
internal processes and decision-making of the Secretariat,and other
managerial or administrative information, where open disclosure of the
information might hamper the Organisation's effectiveness in implementing the
Convention.

DISSEMINATION:

1.10 OPCW RESTRICTED information that must be routinely provided to
States Parties in accordance with subparagraph 2(b) of the Confidentiality
Annex shall be disseminated accordingly.

Classification category OPCW PROTECTED

CRITERION:

1.11 This category comprises information of which the unauthorised disclosure
may cause substantial damage to the effectiveness or credibility of the
Convention, or to the interests of a State Party or of a commercial or
governmental body or of a national of a State Party.

EXAMPLES:

1.12 Unless specified otherwise in accordance with greater or lesser
sensitivity, the following forms of information might be classified as OPCW
PROTECTED when they are acquired or generatedby any means by the
Organisation:

(a) the initial and annual reports and declarations provided by States Parties
under Articles III, IV, V and VI and in accordance with the Verification Annex,
where these documents are considered by the originating States Parties as being
of this level of sensitivity;

(b) unpublishedtechnological information about production processes and
facilities, and technical information about industrial products;

(c) less sensitive or more general information related to commercial
transactions and the cost factors of industrial processes and production;

(d) detailed initial reporting on an inspection, including information on
anomalies or incidents at facilities, and inspection reports;

(e) data and information regarding inspection planning of the Secretariat and
the inspection goals for a specific facility;

Where such information is not considered relevant to verification of
compliance, it will normally be treated initially as OPCW HIGHLY
PROTECTED, even before any formal classification is determined, as
specified in subparagraph 1.17 of this Part.

DISSEMINATION:

1.13 OPCW PROTECTED information that must be routinely provided to
States Parties in accordance with subparagraph 2(b) of the Confidentiality
Annex shall be disseminated accordingly.

Classification category OPCW HIGHLY PROTECTED

CRITERION:

1.14 This category comprises sensitive confidential information of which
the unauthorised disclosure would cause serious damage to the effectiveness or
credibility of the Convention, or its aims and purpose, or cause serious damage
from the point of view of national security or commercial secrecy to the
interests of a State Party or of a commercial or governmental body or national
of a State Party.

EXAMPLES:

1.15 Unless specified otherwise in accordance with lesser sensitivity, the
following forms of information might be classified as OPCW HIGHLY
PROTECTED when they are acquired or generatedby any means by the
Organisation:

(a) the initial and annual reports and declarations provided by States Parties
under Articles III, IV, V and VI and in accordance with the Verification Annex,
where these documents are considered by originating States Parties as being of
this level of sensitivity;

(b) samples taken from inspected sites and returned samples from designated
laboratories, and results from analysis of samples;

(c) especially sensitive confidential information especially provided by a
State Party; and

(d) confidential information for which access is normally only required, or
voluntarily or incidentally provided, during the actual conduct of an on-site
inspection, such as :

- process flow diagrams;

- photographs, plans and diagrams of the site;

- specific data related to technological processes and their parameters;

- analytical data of samples taken on site and analysed on site;

- commercially sensitive market information, such as a detailed list of
customers, and individual quantities sold to them; and

Where such information is not considered relevant to the verification of
compliance, it will normally be treated initially as OPCW HIGHLY
PROTECTED, even before any formal classification is determined, as
specified in subparagraph 1.17 below.

1.16 In most inspection scenarios, the highly sensitive information specified
in subparagraph 1.15(d) above, that may or may not have a national confidential
classification, may be kept at the inspected facility and shall only be made
available for on-site use during the inspection. When such information is not
taken off site and access to it is limited, there will accordingly be no
application of the OPCW classification process within the Secretariat. Even
so, during inspection activities the inspection team will give this information
at least the level of protection afforded to information as OPCW HIGHLY
PROTECTED. The classification category of such information should be
specified to the extent possible in facility agreements.

1.17 Sensitive confidential information not related to the verification of
compliance which is incidentally revealed or collected by any member of an
inspection team shall not be recorded in any form, and shall not be further
disseminated. When access is afforded to such sensitive information during
inspection activities, any member of the inspection team must give it at least
the level of protection afforded to information classified as OPCW HIGHLY
PROTECTED, until or unless the inspected State Party specifies particular
handling or level of sensitivity. In such a case the inspected State Party may
designate (as provided in subparagraph 2.5 of this Part) an initial
classification of such information during the inspection process or in a
facility agreement. In the event that such sensitive information is taken to
the Secretariat inadvertently or by agreement with the inspected State Party,
it shall be classified as OPCW HIGHLY PROTECTED, and protected
accordingly, unless the inspected State Party specifies otherwise.

DISSEMINATION:

1.18 OPCW HIGHLY PROTECTED information that must be routinely provided
to States Parties in accordance with subparagraph 2(b) of the Confidentiality
Annex shall be disseminated accordingly.

2. Classification authority

2.1 For information which has been determined to be classified and which is
transmitted to or generated by the Secretariat, it is mandatory for a
classification regime to be applied in accordance with the above categories and
guidelines under the direct authority of the Director-General. This regime
will include an internal procedure for maintaining consistency of
classification for documents generated within the Secretariat, and for
consulting on and, if necessary, authorising such classification.

2.2 The classification of such information is to be established by the
following authorities:

(a) in the case of confidential information provided by a State Party, that
State Party has the authority to designate its initial classification category;

- if a State Party provides information which appears to be confidential
without indicating a level of sensitivity, the Director-General or his delegate
will be responsible for applying a provisional classification category and
treat the information accordingly. He[*] will
have the responsibility for consulting promptly with the originating State
Party in order to confirm, amend or remove this provisional classification; and

(b) in the case of confidential information generated by the Secretariat, the
originator of the information shall be responsible for assigning a provisional
classification. The Director-General or his delegate has the authority and
responsibility to apply a definitive classification to the information.

2.3 Any document being generated within the Organisation which contains
confidential information should provisionally be classified by its originator.
In establishing a classification category for a new document that is being
generated within the Organisation, due regard should be paid by the originator
to the level of sensitivity already established for documents and/or
information held by the Organisation and which is pertinent to this new
document.

2.4 States Parties, in designating a classification category for confidential
information, should take into account its level of sensitivity and the
corresponding criteria established for each category described in subparagraphs
1.7, 1.11 and 1.14 above. The illustrative indications, set out above, of the
forms of information which may be classified under each category do not
prejudice the primary authority of a State Party to establish the
classification of confidential information it provides.

Classification authority in the course of inspections

2.5 During the course of an inspection, or in the formulation of a facility
agreement, an inspected State Party may designate an initial classification for
confidential information, taking into account the level of sensitivity and the
corresponding classification criteria. This initial classification will have
immediate effect during the conduct of an inspection and in the transmission of
confidential information to the Secretariat on completion of the inspection.
In cases when the inspected State Party discloses to any member of the
inspection team sensitive confidential information without establishing a
formal classification for it, or when such information is revealed to any
member of the inspection team, this member will bear the responsibility of
treating this information as OPCW HIGHLY PROTECTED, unless the inspected
State Party specifies otherwise.

3. Duration of classification

3.1 As a rule, the classification determined for a particular item of
information will continue to apply until it is specifically altered or removed
in accordance with the guidelines established for reclassification and
declassification. When providing confidential information, a State Party may
indicate the duration of classification that is to apply to the information.
If no indication is given, the duration will be assumed to be unlimited.

3.2 To maintain viable and effective protection of confidential information, to
enhance effective verification of compliance and understanding of the whole
verification system, and to reduce the archival holdings of formerly sensitive
material, States Parties, the Director-General and other originators of such
documents within the Organisation may need, inter alia, to keep under
review the designation of confidentiality, and the continuing application of
classification categories, with a view to either declassification, reduction of
classification, or release.

3.3 Classification of information and its duration may be reviewed in
particular in the context of a programme for the disposal of records of the
Organisation. In carrying out such a programme, the Director-General may from
time to time seek the written consent of the originating States Parties in the
declassification of records in accordance with agreed procedures. For
confidential information generated by the Secretariat, the Director-General
shall from time to time review the assigned classifications for holdings of
confidential information. If the information refers to any State Party, that
State Party will need to provide its written consent before the termination of
the duration of the classification. In this respect, an internal review
procedure will be established.

4. Change of classification category

Reclassification of confidential information

4.1 The authority to change the classification of an item of
confidential information will be the same as that specified in subparagraphs
2.2(a) and 2.2(b)of this Part for determination of the original
classification of that information. In particular, an item of information
supplied by a State Party shall not be reclassified without the written consent
of that State Party. This rule will also apply to such items of information
contained in documents which had originated within the Organisation.

4.2 States Parties which have originated or received an item of OPCW classified
information, and senior Secretariat staff (Branch Heads and above) making use
of an item of such information, may request a change in the classification
category for that item. Such a request should be based on a clear operational
need, and should be acted upon in accordance with the following provisions.

4.3 When the State Party which originated an item of OPCW classified
information requests a change of classification, that request will be carried
out. Before confirming the change, the Director-General may consult with that
State Party on the consequences of the proposed change.

4.4 When there is a request, in accordance with subparagraph 4.2
above, for a change in the classification category of confidential
information which was generated by the Secretariat, the Director-General or
his delegate shall, in making a determination, abide by the criteria
established for the application of classification categories with reference to
the stated operational need.

4.5 Reclassification of Secretariat-generated information may be required when
the information is amended, supplemented or revised so as to create a
substantial difference in sensitivity. For instance, a draft report on
compliance may have greater sensitivity than the final version, or sensitive
material may be omitted in a revised version of an inspection report intended
for wider distribution. The principles set out above will be applied in
undertaking reclassification, unless the Convention specifies otherwise.

Declassification of confidential information

4.6 The provisions specified above for reclassification of confidential
information shall also apply to its declassification. In particular, an item
of information supplied by a State Party shall not be declassified without the
written consent of that State Party. The following guidelines shall
additionally be followed in deciding on the declassification of confidential
information:

(a) if declassification is proposed for confidential information originating in
the Secretariat and referring to a State Party in a way that influenced its
original classification, the Director-General shall obtain the express written
consent of the State Party for the declassification; and

(b) for confidential information generated by the Secretariat, the
Director-General (or his delegate) shall consider at least the same aspects
that he took into account when he designated the information as confidential.

4.7 The declassification of confidential information does not imply that it
is, ipso facto, available for public release. Release beyond the
Organisation of any information, including formerly confidential information
which has been declassified, will require a separate process of consultation
and approval in accordance with Part VII of this Policy. This will also apply
to information provided to States Parties by the Organisation under an OPCW
classification.

PART VI

GENERAL PRINCIPLES FOR HANDLING AND PROTECTION OF CONFIDENTIAL
INFORMATION

1.1 This Part sets out the principles governing the Organisation's provision of
access to and regular dissemination of information determined to be
confidential, and governing the associated procedures for handling and
protection of confidential information. This covers the transmission of
confidential information within the Organisation (including its constituent
elements), and the transmission of confidential information to authorised
representatives of States Parties. Guidelines for public or other release of
information beyond the Organisation and States Parties are set out in Part VII.

1.2 These principles are to be applied in the detailed elaboration of all
procedures relating to the handling of confidential information, including in
the OPCW Inspection Manual, the Declaration Handbook, and the Information
Management System (IMS). Further practical procedures shall be set out on the
basis of these principles in administrative directives issued by the
Director-General. The principles contained in this Part shall apply to all
operations of the Organisation, within the Secretariat and other organs of the
Organisation, as well as in their dealings with States Parties. States Parties
which receive confidential information from the Organisation are required to
protect it in accordance with obligations under paragraph 6 of Article VII and
paragraph 4 of the Confidentiality Annex. States Parties should therefore
establish or adapt suitable means of handling and protection for OPCW
confidential information in a manner consistent with these principles.

1.3 The Confidentiality Annex (CA) sets out the two principles governing access
to and the dissemination of confidential information within the Organisation:

- access to confidential information shall be regulated in accordance with its
classification; and

- the dissemination of confidential information within the Organisation shall
be strictly on a need-to-know basis (CA, subparagraph 2(h)).

1.4 It follows from these fundamental principles firstly that the level of
sensitivity of confidential information will govern the procedures by which it
is made available to its recipients and the means employed to protect it; and
secondly that the authorised recipients of confidential information will be
determined in accordance with their demonstrated need, related to the purposes
of the Convention. An important consideration in managing the dissemination of
confidential information is the scope of access afforded to States Parties: in
this context, a primary and unconditional need to know is established by the
requirement for data to be provided to all States Parties for them to be
assured of continued compliance with the Convention by other States Parties
(CA, subparagraph 2(b)). Access to the relevant confidential information
defined by this provision must therefore be provided to serve the vital aim of
due transparency and enhanced mutual confidence between States Parties.

1.5 The actual scope of access associated with a certain item of confidential
information shall be specifically determined, rather than implicitly assumed,
and specific practical steps shall be undertaken in order to protect it against
illegitimate or unauthorised access. The rigour of the determination of scope
of authorised access and the required level and intensity of protection against
unauthorised access shall be regulated in accordance with the classification of
that confidential information. However, level of classification does not in
itself determine the scope of access to classified information, but simply the
manner in which it is to be handled and protected against unauthorised
disclosure.

2.1 The scope of access to confidential information is the full set of possible
recipients authorised to acquire or retain that information; dissemination is
the process of actively passing that information to its authorised recipients.
Accordingly, the notion of 'access' to information entails permitting an
individual to acquire or retain that information. Dissemination of
confidential information is made possible by the application of protection
measures applied in accordance with the level of sensitivity of information, so
that it is disseminated to the extent required for the implementation of the
Convention without unnecessary or unauthorised disclosure. Accordingly,
dissemination of confidential information to all authorised recipients within
the Organisation must take place, irrespective of level of classification, with
the appropriate protection measures being taken. In this connection, it is
notable that States Parties have an obligation under Article VII, paragraph 6,
to apply special handling to confidential information received in accordance
with the Convention.

2.2 Detailed protection procedures and measures are therefore to be elaborated
to permit access to confidential information by an individual Secretariat staff
member or by a State Party in accordance with a functional need to know or a
specific provision of the Convention, while impeding all other access with a
rigour and level of effort linked to the sensitivity of the information as
established by its classification. The provision of confidential information
to the Conference and to the Executive Council shall be based on the general
principles for the dissemination of confidential information.

2.3 The need-to-know principle is the governing principle for determination of
the scope of access and the recipients of dissemination of information. There
is no absolute right within the Organisation to receive confidential
information: no individual staff member of the Secretariat and no member of any
organ of the Organisation is entitled by virtue of status or level alone to
have access to any items of OPCW confidential information.

2.4 Access to confidential information shall normally be granted both on a
case-by-case basis and in accordance with the determination of the functional
need to know. There is, however, an unconditional requirement for access to
certain information by States Parties in accordance with subparagraph 2(b) of
the Confidentiality Annex, and this and related provisions should be viewed as
establishing an unquestionable need to know for each State Party, so as to be
ensured of the continued compliance of other States Parties with the
Convention.

2.5 Within the Secretariat, the specific function or tasks defined for a staff
member shall, within practical bounds, be the principal determinant of that
individual's need to know and of the consequent scope of authorised access to
confidential information.

2.6 The Director-General has the primary responsibility for ensuring the
protection of confidential information (CA, paragraph 2). Hence, subject to
the provisions of the Convention, the Director-General shall be the final
arbiter in the determination of the need to know in relation to any particular
items of confidential information.

2.7 An appropriate unit of the Secretariat[3]
shall be charged with overall supervision of the administration of
confidentiality provisions and the Director-General may specifically authorise
the head of this unit to exercise certain delegations of the authority relating
to confidentiality. The precise identity of this unit will be determined
through general planning of the Secretariat, but for the purposes of this
document it is referred to as the "designated confidentiality unit"[4].

2.8 Once the scope of authorised access to confidential information has been
determined on the basis of the need-to-know principle, access shall be granted
by means of detailed handling procedures established for the Organisation, to
ensure that the manner of access and the level of protection provided are
linked to the classification which applies. Each access by a staff member of
the Secretariat to a physical medium holding confidential information shall be
controlled on a need-to-know basis and shall be recorded, and this record shall
be retained. In the event that such access is through an electronic data
system, a log-on and log-out procedure shall be established and followed by
authorised staff members to ensure that no individual can gain access in the
name of another staff member. The designated confidentiality unit will
supervise the routine operation of these handling procedures.

2.9 There are various circumstances when the Secretariat will need to determine
authorised scope of access and consequently to disseminate confidential
information to States Parties. In all cases, the governing principle is that
established in subparagraph 2(b) of the Confidentiality Annex, and procedures
shall be established to ensure that the requirements of this provision are met.
Hence, data required by States Parties to be assured of the continued
compliance with this Convention by other States Parties shall be routinely
provided to them. In particular, information management and clearance
procedures shall be followed to ensure that the information which must be
provided to all States Parties, in accordance with subparagraph 2(b) of the
Confidentiality Annex, is duly provided without further need for consultation
and approval within the Secretariat.

2.10 In the case of the provision of certain confidential information to a
State Party for a particular purpose, when it is not the application of a
specific requirement under the Convention for dissemination, but is related to
a more specific need to know (such as in the course of clarifications under
Article IX, paragraphs 3 - 7, or in the settlement of disputes under Article
XIV), the general rule is that the Director-General or a single senior official
to whom this authority is specifically delegated under the primary
responsibility of the Director-General shall be consulted and shall give
specific clearance for the proposed access, after confirming the need to know,
with the agreement of any State Party to which the information refers and/or
which has provided the information. The Director-General shall at all times be
kept informed of any exercise of such authority.

2.11 The method of provision of confidential information to a State Party by
the Organisation shall be based on the need for continuity of protection, at a
level linked to the sensitivity of the information. The receiving State Party
is obliged in turn to afford such confidential information the special handling
appropriate to its level of sensitivity, and shall provide, upon request,
details on the handling of information provided to it by the Organisation.

Granting of access to other authorised recipients associated with the
Organisation

2.12 It may be necessary to disseminate OPCW confidential information to
certain authorised entities or individuals that are outside the Secretariat but
are integral to the Organisation's implementation of particular functions
specified in the Convention. The Director-General shall establish a stringent
regime to govern such access and, in accordance with the Confidentiality Annex,
paragraph 2, will retain primary responsibility for any access approved under
this regime. Any such proposed access must be specifically authorised by the
Director-General or the single senior official specifically delegated this
authority under the regime and under the direct responsibility of the
Director-General, and then only after a functional need to know has been
clearly established for the proposed recipient. The Director-General shall at
all times be kept informed of any exercise of such authority.

- The Secretariat shall notify a State Party of any such access of those
authorised entities or individuals to confidential information in relation to
the territory of the State Party or any other place under the jurisdiction or
control of the State Party. A specific secrecy agreement providing for
protection of confidentiality shall be required as a condition for such access,
and this agreement shall be binding on each individual it designates as an
authorised recipient. An assessment of the level of protection provided to
confidential information by the proposed recipient may be undertaken as a
preliminary measure.

- The above principle applies to the transfer of samples to designated
laboratories under the regime established under paragraph 56 of Part II of the
Verification Annex. It may also apply, inter alia, to any access to
OPCW confidential information required by an authorised expert (such as may be
appointed under subparagraph 4(e) of Article IX or paragraph 8 of Part XI of
the Verification Annex) in order to discharge an official function.

- In case of access to confidential information by authorised entities and
individuals outside the Secretariat, such access shall be strictly limited to
the minimum necessary for carrying out functions integral to the Convention's
implementation.

2.13 Each person who has been granted access to OPCW confidential information
in accordance with this provision shall be responsible for ensuring that any
individual beyond the Secretariat to whom he subsequently discloses such
information has a functional need to know and also has written authorisation
from the Director-General or the delegate (as specified in subparagraph 2.12
above) granting the necessary access.

2.14 Access to OPCW confidential information within the Secretariat shall be
granted only to those for whom such access is necessary for the fulfilment of
designated professional duties. In determining need to know within the
Secretariat, close attention shall be paid to a staff member's formal position
description and specified scope of access to confidential information. An
explicit reference to a staff member's particular professional functions is
required in permitting access to OPCW PROTECTED and OPCW HIGHLY
PROTECTED information. The authorised scope of access to confidential
information classified OPCW HIGHLY PROTECTED shall be expressed in
writing on a case-by-case basis.

2.15 A register shall be kept of those staff members whose professional duties
entail regular access to confidential information relating to each State Party.
The Secretariat shall inform a State Party of proposals to accord to an
individual staff member access to confidential information in relation to the
territory of that State Party or any other place under its jurisdiction or
control. The State Party concerned shall be informed not less than thirty days
before access is confirmed. Any staffing appointments or changes in personnel
structure or functions that will lead to access to confidential information
relating to States Parties must be advised to the States Parties concerned not
less than thirty days in advance.

2.16 Only certain senior executive staff members shall be authorised to grant
access to confidential information to other staff members under their
supervision. An administrative directive shall be established by the
Director-General which determines the respective criteria according to strict
need to know. The granting of access is in each case contingent on a
determination that the subject matter is of direct relevance to the proposed
recipient's specified duties, with such access always subject to review by the
Director-General. In cases of uncertainty about the functional or
task-specific need-to-know status of a proposed recipient, a senior staff
member with a supervisory responsibility over the recipient must be
consulted.

3.1 The dissemination of confidential information needs to be distinguished
from the process of release of information by the Organisation. In general
terms, the dissemination of confidential information refers to the authorised
disclosure of such information within the Organisation including all its organs
and to the governments of States Parties, including governmental organisations
and authorised entities or individuals within States Parties concerned with the
operation of the Convention, when this disclosure is essential for specific
professional tasks or is in accord with the provisions of the Convention for
the furnishing of information to States Parties. With regard to the "release"
of information by the Organisation[5], this
process, and its precise scope of application, are defined in Part VII of this
Policy.

3.2 Specific handling and protective procedures shall be applied on a
continuous basis from the first acquisition, collection or generation of
confidential information by the Organisation, and to all subsequent activities
during its dissemination. Information[6] that
may be confidential is acquired, collected and generated by the Organisation in
several ways:

(a) information is provided to the Organisation by States Parties:

- in conformity with their declaration obligations and reporting requirements
specified under the Convention;

- in the course of a formal procedure established under the Convention, such as
those included in Article IX; and

- in passing on other information pertinent to implementation of the
Convention;

(b) other information pertinent to implementation of the Convention in a State
Party may be passed to the Secretariat by that State Party;

(c) information may be passed to the Secretariat or any other organ of
the Organisation by a representative of a State Party in the course of a formal
procedure established under the Convention, such as those included in Article
IX;

(d) information is acquired or collected by an inspection team in the course of
an on-site inspection;

(e) information is generated by Secretariat staff members through the synthesis
or other processing of other information, for instance in the course of
analysing samples or compiling inspection reports. Generated information may
draw on or duplicate information initially provided by States Parties, or may
only use information from within the Secretariat. The synthesis of information
or the conduct of analysis may produce confidential information which is of a
higher level of sensitivity than its original sources.

3.3 When information is received by the Organisation from any of these sources,
specific obligations are incurred to protect and handle it appropriately. In
particular, the initial recipient or the originator of the information is
obliged to ensure that the confidentiality content is clearly determined, and
that the correct classification has been applied, in consultation where
necessary with the designated confidentiality unit. Confidential information
which is compiled or synthesised by Secretariat staff members, and which draws
on confidential information originating from States Parties shall, as a rule,
bear at a minimum the classification designated by the State Party, unless the
level of the sensitivity of the information has been reduced with the consent
of the originating State Party, or the level of sensitivity is determined to be
higher. Any deviation from this rule shall be confirmed by the
Director-General's delegate in the designated confidentiality unit.

3.4 Information generated within the Secretariat (such as analytical or other
reports, policy papers, profiles, letters, memoranda) which contains
confidential information shall be initially classified and so labelled by its
originator in accordance with its sensitivity, at a level at least as high as
the most sensitive classification of the source material from which it was
derived or which was used in the synthesis. Where the level of sensitivity has
consequently increased above that of the original source material, a higher
level of classification shall be applied.

3.5 Information, including that designated as confidential, which is passed to
the Organisation by a State Party must be provided by an official
representative of that State Party. The Secretariat will establish and follow
a registry process to record the receipt and the official source of such
material.

3.6 The classification of information provided by a State Party to the
Secretariat would in most cases have already been specified by that State
Party, in view of its primary authority for classification. In doing so, the
State Party should take into account the level of sensitivity and the
corresponding criteria established for each classification category in Part V
of this Policy. If a State Party provides the Secretariat with information
which appears to be confidential, but without indicating a level of
sensitivity, a provisional classification category shall be implemented as
provided under subparagraph 2.2 of Part V of this Policy.

3.7 The overall obligation to protect and appropriately handle information upon
first disclosure to the Organisation is especially important when information
is collected during the course of on-site inspections, such as the collection
of site-specific observations or the taking of samples. Particular principles
for the handling and protection of confidential information during inspections
are accordingly set out in paragraph 6 of this Part.

3.8 Individuals shall not discuss or disclose confidential matters in any
circumstances when they do not have control over the security of the
information and its environment. The Director-General shall establish in an
administrative directive specific procedures to prevent unauthorised access and
disclosure in conversation or through telecommunication media, with the level
of physical or other protective measures linked to the level of sensitivity of
the information as expressed in its classification. Actual recourse to the
approved use of telecommunications for transmission of confidential information
shall be limited to cases of clear operational necessity.

3.9 Subject to the obligation to preclude unauthorised access, Secretariat
staff members may disclose confidential information to, or discuss it with:

(a) authorised Secretariat staff members with an established need to know;

(b) persons, who are not permanent staff members, to whom access has been
granted under the provisions of subparagraphs 2.12 and 2.13 of this Part, such
as authorised experts or authorised personnel of a designated laboratory who
are individually bound by secrecy agreements; in such a case the amount of
information disclosed shall be kept to a minimum, yet should be sufficient to
facilitate the task for which the access was granted; and

(c) authorised representatives of a State Party to which the information
pertains, which has the clear entitlement to such disclosure as explicitly
established by a provision of the Convention, or for which any other
authorisation and need to know have been established.

3.10 The Director-General shall issue and the designated confidentiality unit
shall supervise the implementation of administrative directives setting out
detailed practical handling procedures for the following categories of physical
media, to ensure the protection of confidential information each such medium
carries during all handling and storage operations:

- documents, including papers and paper files;

- computer material;

- audio-visual material; and

- samples.

These administrative directives shall aim at establishing practical mechanisms
for ensuring that all the principles established in this document are met.

3.11 For confidential information which relates specifically to inspected or
declared facilities, a coding system and associated storage shall be applied to
preclude direct identification of any facility to which it pertains, to the
greatest extent consistent with effective verification.

4.1 In order to ensure the proper handling of OPCW confidential information,
all documents and media for information storage shall be clearly marked in
accordance with the marking instructions set out in an administrative directive
issued by the Director-General and supervised by the designated confidentiality
unit. The basis of the markings will be the three classification categories,
one of which should be clearly applied to any medium carrying information
determined to be confidential:

- OPCW RESTRICTED

- OPCW PROTECTED

- OPCW HIGHLY PROTECTED

4.2 Each individual document must be clearly marked according to the highest
level of sensitivity of the material it contains. Where this may facilitate
subsequent release or dissemination of less sensitive portions of a document,
the principle of portion marking may be applied so that classification
indications are given of the particular levels of sensitivity of sections
within a document, the overall document being clearly marked as bearing the
highest level of sensitivity.

4.3 The Confidentiality Annex stipulates that all data and documents obtained
by the Secretariat shall first be evaluated for confidentiality content
(subparagraph 2(b)) and that, if confidential, such data and documents shall
then be classified (subparagraph 2(d)); this process shall accord with the
right of any State Party to designate information it provides as confidential.
The designated confidentiality unit will be the appropriate unit for this task,
and will therefore implement procedures to ensure that all information with
possible confidentiality content which has been acquired from outside the
Secretariat is evaluated and any necessary classification is clearly marked.
The determination of the classification to be applied and the authority to
classify must be in accordance with the OPCW Classification System. In cases
where information appears to be confidential but is initially not clearly
marked by the originator, appropriate marking shall be carried out by the unit,
with the determination of a provisional classification category if necessary.
Any provisional classification so applied should be promptly confirmed, amended
or removed following consultations with the originator of the information.

4.4 All confidential information generated in the Secretariat is required to be
clearly marked by its originator in accordance with a provisional
classification category relevant to its sensitivity. The level of this
classification must be determined in accordance with the OPCW Classification
System. Branch heads must supervise the proper marking of internally generated
confidential material, under the overall coordination and authority of the
designated confidentiality unit.

4.5 Information generated by inspectors on the basis of information provided by
an inspected State Party, such as inspection reports or parts thereof, shall be
marked with the classification which accords with the level of sensitivity
indicated by the State Party. In cases where the level of sensitivity of such
information is unclear, the information shall be treated as OPCW HIGHLY
PROTECTED until the level of sensitivity has been clarified through
consultations with the inspected State Party.

4.6 Filing and record-keeping procedures to ensure that the internal routing
and filing of confidential information are registered shall be established by
the Secretariat in accordance with an administrative directive issued by the
Director-General and supervised by the designated confidentiality unit. These
procedures shall record the provision of any such confidential information to
any individual, agency or body within and beyond the Secretariat, including to
representatives of States Parties.

4.7 All confidential information should be stored and internally distributed in
a manner that records each staff member who has had access to it, and the date
and time of access. The Secretariat shall also establish additional
record-keeping procedures to ensure the continuous monitoring of OPCW HIGHLY
PROTECTED information, and to determine who has had or currently has such
information in his possession.

4.8 Copying information entails its replication in a way that generates
potential or possible additional access to the information. When copying
confidential information, the number of copies made should be kept to a minimum
and shall be linked to the approved scope of access and consequent
dissemination. The staff member responsible for copying the information must
ensure that all copies of a copied document clearly have the appropriate
markings.

4.9 OPCW HIGHLY PROTECTED information can be copied only after obtaining
the registered consent of an authorised senior staff member other than the
staff member who will be copying the information, or in terms of a specific
standing order. Such consent may specify that the copying must be done under
the supervision of another staff member. The number of copies taken must be
recorded, and each copy numbered. Copies should be distributed to any approved
recipients, with this transmission recorded. Any surplus copies, or copies no
longer in use shall be returned to the filing clerk, who shall either file or
destroy them, recording this action.

4.10 Information to be provided to States Parties in accordance with
subparagraph 2(b) of the Confidentiality Annex, but which is confidential,
shall be copied and disseminated routinely in accordance with the requests of
States Parties and in accordance with an administrative directive issued by the
Director-General. In the case of OPCW PROTECTED and OPCW HIGHLY
PROTECTED information, a record should be kept of the number of copies
taken and the recipient(s) of each of the copies.

4.11 An administrative directive issued by the Director-General shall establish
handling procedures for the Secretariat to ensure the secure disposal and
destruction of material containing confidential information. These procedures
shall cover:

- technical methods of destruction or disposal for all categories of media;

4.12 Transmission of confidential information, in hard copy and electronic
format, to and from the Secretariat shall occur in conformity with the level of
sensitivity of the information and shall be bound by strict procedures set out
in an administrative directive issued by the Director-General. These
procedures shall include:

- guidelines for secure mailing or manual transmission, and the safe-hand
carriage, of confidential information; and

- procedures for secure transmission by telephone, telefacsimile and other
telecommunications systems.

4.13 These rules must ensure that for each item of confidential information
disseminated:

- the item is received at its intended destination;

- only authorised users have access to any transmitted data; and

- the recipient of a message can verify that the sender is an authorised
person.

4.14 An administrative directive issued by the Director-General will describe
the standards set down for the secure communications system established for the
IMS, and this will be applied in the inspection manual.

4.15 Staff members and other authorised personnel using confidential
information or who are responsible for its safe-keeping must take every
precaution to prevent deliberate or accidental access to such information by
unauthorised persons. This involves at a minimum following all the procedures
and meeting the standards established within the Organisation for handling and
protecting confidential information, and ensuring the continuity of protection
during dissemination.

4.16 Confidential information must not be used or placed so that it is exposed
or made accessible to individuals not authorised to have access to such
information. The designated confidentiality unit shall establish procedures to
ensure that confidential information is properly handled by Secretariat staff
members, and the Director-General shall ensure that these procedures are fully
carried out, that any violations are detected and reported, and that
appropriate disciplinary sanctions are imposed in accordance with Part IX of
this Policy.

4.17 The Director-General shall set out, in an administrative directive,
physical security measures for offices, laboratories, information storage
areas, computer media and audio-visual material classified as confidential, as
well as standards for physical storage facilities within the Secretariat,
including locks and security of secure areas, filing cabinets and sealed
containers. These measures shall include procedures for restricting access to
OPCW buildings and other sites, and for registering the presence of visitors
and staff members during and after working hours. The procedures shall
include special access arrangements for especially sensitive areas within the
OPCW building(s) and other sites, such as storage areas for confidential
information, office areas working with the processing and validation of
declarations and inspection reports, the operations centre, and the OPCW
Laboratory.

4.18 Confidential information shall be stored securely at the premises of the
Organisation. Some data or documents may also be stored with the National
Authority of a State Party. Sensitive information, including, inter
alia, photographs, plans and other documents required only for the
inspection of a specific facility may be kept under lock and key at this
facility (CA, subparagraph 2(e)).

4.19 To the extent practicable, storage of OPCW confidential information at the
National Authority of a State Party or at an inspected facility should accord
with the minimum standards applied by the Secretariat.

4.20 Handling procedures shall be established in an administrative directive
issued by the Director-General to cover the carriage of confidential
information from the premises of the Organisation, between inspected sites and
the Organisation, and between the Organisation and representatives of States
Parties. Any such removal shall occur only for purposes related to the
implementation of the Convention, and only to the minimal extent necessary for
the performance of authorised professional functions.

4.21 Procedures shall be set out in an administrative directive issued by the
Director-General to cover the eventuality of a loss or suspected loss of OPCW
confidential information, including loss by an inspector, by a staff member of
the Secretariat or by a representative of a State Party, as well as loss in
transit. Such procedures shall include requirements for reporting,
investigations, and consulting with States Parties concerned. As the loss or
suspected loss indicates a possible breach of confidentiality, the procedures
for dealing with breaches or alleged breaches of confidentiality must be
invoked.

5.1 The handling procedures for confidential information set out in paragraph 4
above apply to all confidential information, regardless of the medium on which
it is stored; the following additional procedures relate to information carried
on particular forms of media.

5.2 An administrative directive shall set out procedures for the handling of
audio-visual material containing confidential information, specifying levels of
protection in accordance with classification categories, and following closely
the procedures specified for handling documents containing confidential
information.

5.3 Access to all sites of the OPCW and key components of the IMS, such as the
servers and mass storage devices, must be controlled. All hardware of the IMS
and especially workstations, servers and user terminals shall be protected, not
only from theft or criminal damage, but also from unauthorised physical access
and tampering attempts. In addition, maintenance and repair activities on IMS
hardware shall be supervised and recorded. Access to such hardware items as
servers, printers, back-up devices, as well as other output devices, shall be
limited to staff members with appropriate clearances.

5.4 Procedures for the protection of confidential data stored within the IMS
and any other electronic data-processing system or storage device shall
incorporate the following elements:

- access control measures against unauthorised users or any unauthorised
external access;

- separation of the files and data of the various users; and

- audit on user activities including access to the databases and changes made
to operating system parameters and system files. In particular, any access by
individual staff to computer files containing confidential information shall be
recorded and regular audits conducted of these records.

5.5 The data, document and information computer security procedures shall
provide detailed guidelines for protecting confidentiality while creating,
handling, marking, backing up and destroying all forms of computer files,
computer documents and other documents relevant for tasks such as system
administration and computer security management and operations.

5.6 Computer material (including portable storage media such as diskettes) and
confidential information stored in the OPCW IMS must be handled and protected
in accordance with handling and storage procedures supported by detailed
technical specifications set out in an administrative directive by the
Director-General.

Samples from on-site inspections

5.7 Paragraph 55 of Part II of the Verification Annex provides for the
transfer of samples taken during inspections off-site for analysis at
designated laboratories. The process of sampling is inherently relevant to
the verification of compliance with the Convention, but such samples may also
incidentally carry and potentially yield other information which is itself not
directly relevant to verification. For this reason, the inspection manual
shall include procedures for ensuring the protection of the confidentiality of
samples transferred for off-site analysis at designated laboratories.

5.8 Development and implementation of the regime established under paragraph 56
of Part II of the Verification Annex for the collection, handling, transport
and analysis of samples shall be founded on the requirement for the protection
of confidentiality during the transfer to and storage by designated
laboratories. This regime shall address the particular concern that further
confidential information not related to compliance might be yielded during the
process of compliance-related analysis. Further confidentiality concerns shall
be addressed by the sample accounting procedures established under paragraph 57
of Part II of the Verification Annex, and associated procedures for informing
the inspected State Party that designated laboratories have destroyed samples
or have returned them to the Secretariat after the completion of analysis for
appropriate final handling. Designated laboratories shall be required to
enter specific secrecy agreements confirming obligations established under the
regime governing the sampling and analysis process.

6.1 The Confidentiality Annex and earlier sections of this Policy establish
fundamental principles for the handling and protection of confidential
information during inspections, both the information acquired or collected
during the verification of compliance, and other information not relevant to
the aims of the Convention which may be disclosed in the course of inspection
activities. The OPCW inspection manual is to establish detailed procedures
founded on these principles, including the necessary procedures for the use,
protection and scope of access of data, documents and files during the conduct
of inspections, consistent with the requirements of the Confidentiality Annex
and the functional requirements for inspectors in the field. These must take
into account functional requirements for the protection of data stored in
portable devices, and the general procedures established for the carriage and
storage of confidential information.

6.2 The key practical elements for the protection of confidential information
in the course of inspections are the inspection procedures, the use of
equipment, and the process of consultation within the inspection team and with
representatives of the inspected State Party. Inspection procedures shall
stipulate a clear hierarchical line of communication within the inspection team
to allow consultations on issues that arise in relation to confidentiality, and
the use to be made of confidential information. In accordance with this
structure, there shall be consultations during facility agreement negotiations,
pre-inspection briefings, and during the conduct of initial and subsequent
inspections, between representatives of the inspected State Party, the
inspected facility and the inspection team, to establish clearly the level of
access to be granted to each inspection team member and the treatment to be
afforded to confidential information disclosed or collected. In the case of a
challenge inspection, an observer is obliged to respect fully the
confidentiality of any information to which access is provided in accordance
with the Convention's challenge inspection provisions, and should treat such
information accordingly.

6.3 The classification procedure set out in subparagraph 2.5 of Part V of this
Policy shall be applied to information collected during the course of
inspection. In accordance with this procedure, such information shall be
promptly evaluated for confidentiality, and shall thereupon be given an initial
classification and due protection in accordance with its sensitivity, with
close reference to any facility agreement and in agreement with representatives
of the inspected State Party. Where there is no relevant agreement in place
prior to the inspection, the inspected State Party should be encouraged by the
inspection team to nominate whenever possible the classification category of
any confidential information disclosed during the course of inspection. In the
event that sensitive confidential information is disclosed or revealed to any
member of the inspection team without any indication of its classification
category, the classification system requires that it be handled and protected
as OPCW HIGHLY PROTECTED unless the inspected State Party provides
otherwise. In general, where there is doubt or uncertainty, handling and
protection afforded to confidential information should be at the most stringent
level applicable, and consultations on further disclosure and dissemination
even within the inspection team must fully heed the need-to-know principle for
determining scope of access. If collected information includes confidential
information not relevant to the Convention, it will require particular handling
as discussed in the relevant paragraph below.

6.4 This Policy sets out clear principles governing the protection of
confidential information not relevant to compliance with the Convention, and
the particular responsibilities in this regard.[7] Hence verification activities must be
designed, planned and carried out so as to avoid unnecessary disclosure of
confidential information and so as to seek to prevent disclosure of such
information not related to compliance with the Convention in the terms of any
inspection mandate, consistent with effective and timely discharge of
verification obligations. These principles also require that confidential
information not relevant to compliance with the Convention shall not be sought,
recorded or retained: in the course of any inspection, it is a basic
responsibility of each member of the inspection team, and especially of its
leader, to ensure that this does not occur. However, it is recognised that in
the course of inspection activities, it might occur that other confidential
information which is itself not relevant to the purpose of the inspection is
collected or recorded in various forms (as are set out in the definition of
"information" in Part III of this Policy)[8],
by means of items such as approved inspection equipment, inspectors' clothing,
and personal articles. In the event that such information is disclosed in the
course of inspection activities, it shall not be further disseminated in any
form, even within the inspection team, and shall be returned to the inspected
State Party or destroyed under its supervision.

6.5 In the course of inspection activities, the Confidentiality Annex specifies
that States Parties "may take such measures as they deem necessary to protect
confidentiality, provided that they fulfil their obligations to demonstrate
compliance in accordance with the relevant Articles and the Verification
Annex"[9]. Inspection teams are obliged, among
other things, "to take into consideration proposals which may be made by the
State Party receiving the inspection, at whatever stage of the inspection, to
ensure that sensitive equipment or information, not related to chemical
weapons, is protected". [10] "Inspection teams
shall strictly abide by the provisions set forth in the relevant Articles and
Annexes governing the conduct of inspections. They shall fully respect the
procedures designed to protect sensitive installations and to prevent the
disclosure of confidential data."[11]

6.6 Subject to a full consultation process with the inspected State Party both
during and after an inspection (such as is established for challenge
inspections in subparagraph 61 of Part X of the Verification Annex), the
Organisation is responsible for confirming to the inspected State Party that
information gathered in accordance with the provisions of the Convention in the
course of inspection activities is relevant to compliance with the Convention
in the terms of the inspection mandate. The inspection team must protect any
information gathered during the inspection in accordance with the
classification level which the inspected State Party prescribes for it. The
inspected State Party may not, within the framework of existing obligations in
relation to demonstration of compliance with the Convention, object to
inclusion of information in the preliminary inspection findings, if following
full consultations the inspection team maintains that it is relevant to
compliance with the Convention in the terms of the inspection mandate.

6.7 Any information gathered in the course of inspection but not included in
the listed and copied material provided to the inspected State Party is
presumed not to be relevant to the inspection mandate, and must be treated as
specified in subparagraph 6.4 above. The principle is recognised that
limitations on access and dissemination, such as those agreed as part of
managed access in the case of a challenge inspection, shall be complied with by
inspection team members and that no information a State Party views as
confidential but of which it has not received a copy will leave the inspection
site without its consent. Without prejudice to the obligation for a State
Party to demonstrate compliance, procedures to implement the above principles
include, inter alia:

- additional cleaning of inspection equipment;

- changing of clothes before or after a particular inspection activity;

- the transfer of affected equipment under joint seal to the Secretariat for
decontamination under the supervision, if requested, of a representative of the
inspected State Party;

- the retention on site of detachable parts carrying confidential information
unrelated to the Convention; or

- after exploring all other possibilities, including the above, the retention
of equipment on site.

These procedures shall not be abused and shall be implemented, where relevant,
in accordance with a legal framework respecting the immunity established under
subparagraph 11(d) of Part II of the Verification Annex.

6.8 None of the procedures followed in accordance with these principles shall
impede or delay verification activities conducted under the inspection mandate
and in accordance with the provisions of the Convention.

PART VII

PROCEDURES FOR THE RELEASE OF INFORMATION BY THE OPCW

1. General

1.1 This Part of this Policy sets out the principles governing the
procedures which the Organisation is to follow concerning the release of any
information which it holds in connection with the implementation of the
Convention. 'Release' of information by the Organisation refers to the
approved disclosure of information beyond the Organisation itself (including
all its constituent elements) and beyond the governments of States Parties
(specifically, beyond governmental organisations and authorised entities or
individuals within States Parties concerned with the operation of the
Convention). Accordingly, these principles govern the release of OPCW
information to any other international organisation, to the government of a
State not party to the Convention, to private or governmental organisations
unrelated to the implementation of the Convention, or to any individual who is
neither employed or contracted by the Organisation nor authorised by a State
Party in relation to implementation of the Convention.

1.2 In the course of the implementation of the Convention, there will be
cases in which the Organisation needs to release information in order to comply
with its obligations. The release may be fully public, or may be limited in
scope according to particular circumstances. The need to release information
may arise for both unclassified and classified information. No information
obtained or generated by the Organisation in connection with the implementation
of the Convention shall be published or otherwise released, except in
accordance with the following guidelines.

2. Public release of information

2.1 The Director-General may publicly release information that is not
designated as confidential (including formerly confidential information which
has been declassified in accordance with subparagraphs 4.6 and 4.7 of Part V of
this Policy) and that falls into one of the following categories:

(a) general information on the course of the implementation of the Convention
which does not contain material relating specifically to any State Party. This
excludes specific information about inspection activities being conducted in or
planned for a State Party. The types of information which may be released
publicly under this provision will be set out in a list approved by the
Conference; this list could include details of declaration requirements and
forms, generic or model documentation, summary information about the overall
verification programme, and verification technology and methodology applied in
on-site inspections;

(b) factual organisational information about the Organisation, except for
information that relates to the security of the Organisation, or to personnel
matters and the privacy of staff of the Secretariat; or

(c) information referring to a State Party, which is unclassified and which
that State Party has specifically requested or consented to be publicly
released.

2.2 The Director-General shall consider and decide upon individual requests for
the public release of information, provided that it falls within the terms of
the preceding paragraph. Requests going beyond these parameters shall be
referred to the Executive Council or the Conference for decision.

2.3 All contacts between Secretariat staff members and the media shall be
subject to this Policy, in particular, Part VII of this Policy (including these
procedures established for the public release of information) and the OPCW
Media and Public Affairs Policy. The Director-General shall issue an
administrative directive governing media policy, in accordance with these
public release policy guidelines.

3. Limited or non-public release of information

3.1 There may be cases where it is necessary[12] to release information beyond the
Organisation in a manner that is short of full public release. This may
include release to an international organisation or governmental organisation
for official use only, and subject to certain conditions. Such non-public
release may apply to confidential information bearing an OPCW classification,
or to declassified as well as to unclassified information. Confidential
information bearing an OPCW classification shall be released only if the
Director-General confirms that adequate protection and control can be
maintained in the recipient organisation. The Director-General shall conclude
an agreement or agreed arrangements with potential recipient organisations on
the handling and protection of classified information.

3.2 Limited or non-public release of information might take place:

(a) when the Executive Council decides to bring an issue or matter directly to
the attention of the United Nations General Assembly and the United Nations
Security Council in accordance with paragraph 36 of Article VIII;

(b) when the Conference decides to bring an issue to the attention of the
United Nations General Assembly and the United Nations Security Council in
accordance with paragraph 4 of Article XII; or

(c) when the Conference or the Executive Council decides to request the opinion
of the International Court of Justice with the authorisation of the General
Assembly of the United Nations in accordance with paragraph 5 of Article XIV.

3.3 The limited or non-public release of information which does not bear an
OPCW classification can be authorised by the Director-General provided that the
information falls within the categories set out in subparagraph 2.1 of this
Part. Requests for the release of information not bearing an OPCW
classification but going beyond these parameters shall be referred to the
Executive Council or the Conference for decision.

3.4 When limited or non-public release is proposed for confidential
information, the scope and conditions for such release shall be in strict
conformity with the needs of the implementation of the Convention. The
need-to-know principle governing dissemination of information must still apply.

3.5 If confidential information refers to a particular State Party, and that
State Party expressly requests or consents to its release, then the release may
proceed without further consultation. In all other cases, a decision of the
Conference or the Executive Council is required for the release of confidential
information beyond the Organisation. While a request for a decision on such a
release can be put to either organ, such a request will normally be part of a
general policy decision by the Conference or Executive Council to refer a
related issue to an external body in accordance with the Convention, and so the
decision on release would be taken by the same organ considering the general
policy question.

3.6 A decision to approve such a release should be based upon:

(a) an explicit determination that the intended recipient has a clear need to
know in accordance with the recipient's role in the implementation of the
Convention; and

(b) a determination that the intended release conforms with the needs of the
Convention.

3.7 When an apparent need arises for release of confidential information, the
Director-General shall prepare a draft proposal for release for consultation
and review by the parties concerned. The factors for determining
confidentiality and the classification of the information are required to be
fully addressed in the formulation of the proposed release. When applicable,
the information proposed for release shall be processed into less sensitive
forms so that disclosure of confidential information not relevant to the
purpose of the release is avoided. In this case the processes for
declassification or reclassification should be applied. If the confidential
information was obtained from or refers to a State Party, the Director-General
or a delegate authorised for this function is required to obtain the written
consent of that State Party for the proposed release. The withholding of such
consent shall not be used to avoid a State Party's obligations under the
Convention.

3.8 In preparing a release proposal, the Director-General may propose specific
conditions or limitations on the scope to be associated with the release, with
the aim of ensuring that the release is focused on its particular purpose
connected with the implementation of the Convention. Some of the limitations
of scope or conditions that may apply are:

(a) access to the confidential information only on a temporary basis, such as
for the duration of a meeting or for the duration of a consultancy;

(b) specification that the information is for official use only;

(c) request for particular handling, such as a request to destroy or return the
information after a specified period;

(d) specific controls on some sensitive parts of the confidential information;
and

(e) visual display of the confidential information, such as projection during
the course of a meeting.

3.9 After consultation with the parties concerned, the proposal for release
will then be put to the Executive Council or the Conference for decision.

PART VIII

ADMINISTRATION

The Director-General

1. The Director-General shall establish and supervise the implementation and
auditing of the regime for the protection and handling of confidential
information within the Organisation in accordance with the principles set out
in the Confidentiality Annex and this Policy. To this end, the
Director-General shall issue and supervise the implementation of administrative
directives required by this Policy.

2. The Director-General shall have the primary responsibility for the
enforcement of this regime and will charge appropriate units in the Secretariat
with particular tasks for the implementation of the regime in accordance with
this Policy. In exceptional cases, the Director-General may delegate specific
authority in relation to implementation of the confidentiality regime to a
limited number of senior Secretariat staff members, subject to specific
limitations set out in this Policy[13]. The
Director-General shall also personally supervise the conduct of those units and
shall remain personally responsible for actions taken by his delegates in
exercising his authority.

Administration of the confidentiality regime in the Secretariat

3. The confidentiality regime shall apply to the operations of all elements of
the Secretariat. An appropriate unit of the Secretariat shall be designated
for the task of evaluating all data and documents obtained by the Secretariat,
to establish whether they contain confidential information, applying the
guidelines set out in subparagraph 2(a) of the Confidentiality Annex and
paragraph 11 of Part III of this Policy. Auditing of the operation of the
confidentiality regime shall be conducted internally by the Secretariat and
shall be kept functionally distinct from any unit tasked with its
implementation.

4. Under the Director-General's supervision, the Secretariat shall ensure that
its staff members are properly advised and reminded about their obligation to
protect confidential information and to abide by the confidentiality regime, as
well as about the principles of this Policy and the procedures required to
implement it, the principles and procedures relating to security, and the
possible penalties that they would incur in the event of unauthorised
disclosure of confidential information.

PART IX

BREACH PROCEDURES

IX.1: BREACH INVESTIGATION PROCEDURES

1. Investigations into breaches and alleged breaches of confidentiality and
violations of confidentiality obligations

On the basis of the provisions of the Confidentiality Annex (paragraph 19),
this Part of the Policy outlines the procedure for investigations by the
Director-General in relation to breaches and alleged breaches of
confidentiality and violations of related obligations to protect confidential
information.

Step 1: Investigation by the Director-General

Step 2: Interim action

Step 3: Report of investigations

Step 4: Action in response to an investigation report

4a: Disciplinary sanctions against serving Secretariat staff

4b: Sanctions against former Secretariat staff

4c: Action taken in relation to waiver of immunity

4d: Other legal action within national jurisdiction

4e: Action taken when a State Party appears responsible

4f: Action to reform or enhance the confidentiality regime

2. Definitions

A breach of the obligation to protect confidentiality ('a breach of
confidentiality') includes any unauthorised disclosure of OPCW information to
any individual, or government or private entity, regardless of the intention or
the consequences of the disclosure. A breach of confidentiality can also be
associated with misuse of information to gain a personal advantage or to
benefit or damage the interests of a third party. A violation of obligations
concerning the protection of confidential information is deemed to have taken
place if there has been non-compliance with the specified procedures for the
handling, protection, release and dissemination of confidential information so
as to create a clear risk of unauthorised disclosure, with or without such
disclosure actually occurring. In practical terms, there is considerable
overlap between a breach of confidentiality and a violation of obligations to
protect confidential information.

3. Step 1: Investigation by the Director-General

3.1 As required in the terms of the Confidentiality Annex, the Director-General
shall promptly initiate an investigation:

(a) following 'sufficient indication' that there has been a violation of an
obligation to protect confidential information on the part of a staff member of
the Secretariat, another authorised individual or entity beyond the Secretariat
, or an agent or official of a State Party; or

(b) when a State Party has lodged an allegation concerning a breach of
confidentiality.

3.2 In particular, the Director-General shall initiate an investigation if he
becomes aware that there is a reasonable possibility, or clear risk, of
unauthorised disclosure of confidential information occurring, inter
alia, in a manner:

(a) which violates the policy or guidelines of the Organisation established for
the handling, protection, release and dissemination of confidential
information; or

(b) which could adversely affect the object and purpose of the Convention or
the interests of the Organisation, a State Party, or a commercial or
governmental body or a national of a State Party, or could offer particular or
selective advantage to an individual, a State, or any other body, including a
commercial firm.

3.3 The Director-General is obliged to investigate any allegation by a State
Party that a breach of confidentiality has occurred. Such an allegation should
be made in writing to the Director-General, and should to the extent possible
provide supporting information. An allegation should, if possible, state the
nature of the information involved, the time and location at which the breach
is alleged to have occurred, and the actual or possible future damage believed
to affect relevant interests.

3.4 When a decision has been taken to proceed with an investigation, the
decision should be made known immediately to any States Parties and any
Secretariat staff member involved in the alleged breach or suspected violation.

3.5 The aim of the investigation is to establish whether there has been a
breach of confidentiality or a violation of the handling, protection,
dissemination or release procedures for confidential information, and the
severity of any breach including the degree and nature of any damage caused.
The investigation should also consider ways of enhancing the confidentiality
regime so as to prevent any recurrence of a breach or violation of procedures.

3.6 The Director-General shall be directly responsible for the
investigation, and will direct it personally, but may appoint a designated
senior staff member to conduct investigatory work. The investigation should
commence with a preliminary review of the circumstances surrounding the
allegation or indication of a violation, and a consideration of any evidence or
supporting information. The Director-General at this stage may find that a
prima facie case does not exist; if so, he may, at his discretion,
either consult with a State Party that has made an allegation, or he may
conclude the investigation and report a finding that no prima facie case
was established. Following the establishment of a prima facie case of
a breach affecting the interests of a State Party, the Director-General shall
notify the Executive Council that an investigation into a breach is in progress
and, with the consent of that State Party, may present specific information
about the investigation, if requested.

3.7 The investigation procedure following the establishment of a prima
facie case may include the following activities:

(a) the collection and examination of evidence within the OPCW or its
constituent organs;

(b) the examination of further material supplied by States Parties as
evidence;

(c) confidential interviews with staff members of the Secretariat;

(d) consultations with States Parties concerned, including with representatives
of industry or private entities concerned nominated by States Parties; and/or

(e) a request for a State Party to provide details on the handling of
information provided to it by the Organisation.

3.8 The proceedings of the investigation will remain confidential, and will be
subject to the strict application of the need-to-know principle. Particular
care should be given to the possible damaging effects of disclosures about such
an investigation to Secretariat staff members as well as to the interests of
States Parties. The investigation should be conducted on the basis of
objectivity and due process, and there should be no use of coercion to elicit
information from any individual concerned. Every effort should be made to
conclude the investigation and take appropriate action in response to its
findings as quickly as is possible and consistent with proper procedure.

3.9 All States Parties concerned and all staff members of the Secretariat
involved shall cooperate with and support the investigation to the extent
possible. For States Parties, this may entail providing details of internal
investigations conducted, furnishing evidence, advising on national judicial
proceedings in relation to the same matter, and advising on the degree and
nature of damage caused by a breach. Staff members are required to provide any
factual information relating to the aims of the investigation and their
professional responsibilities.

4. Step 2: Interim action

4.1 If a prima facie case is established which apparently implicates a
currently serving member of the Secretariat:

(a) procedures will be initiated in accordance with the Staff Regulations and
Rulesto impose interim restrictive measures for the duration of
the investigation, such as withdrawal from certain functions or denial of
access to certain information, or, if the case appears serious, temporary
suspension in accordance with the OPCW Staff Regulations and Rules;

(b) the Director-General shall consider and may propose immediate action, if
necessary in consultation with the Executive Council, to protect all legitimate
interests which could be prejudiced by the breach or alleged breach of
confidentiality, including the interests of a State Party or of the
Organisation; and

(c) if the investigation is at the request of a State Party, then the
Director-General shall inform this State Party of any such interim action
taken.

4.2 An employee suspected of involvement in a breach should be informed by
registered letter of the decision to take such interim action, stating the
basis of this action and advising of any recourse available.

4.3 If the preliminary stage of the investigation discloses prima facie
indications that a State Party may have been responsible for a breach, or may
have otherwise been involved, the Director-General shall consider and may
propose immediate action for decision of the Executive Council, to protect all
legitimate interests which could be prejudiced by the breach of
confidentiality, including the interests of any other State Party or of the
Organisation. The Director-General may request that State Party to provide
details on the handling of information provided to it by the Organisation.

4.4 If the preliminary stage of the investigation discloses prima facie
indications that a natural or legal person in a State Party's jurisdiction may
have been responsible for a breach, or may have otherwise been involved, the
Director-General may consult with and request support from that State Party, if
necessary following Executive Council approval, on possible action to protect
all legitimate interests which could be prejudiced by the breach of
confidentiality.

5. Step 3: Report of investigations

5.1 The Director-General shall prepare a report of the investigation which will
state whether there has been a breach of confidentiality or a violation of the
handling, protection, dissemination or release procedures for confidential
information. The report will be prepared in two forms, a full form which sets
out the facts determined in detail, and a modified form from which specific
confidential material has been removed to ensure that confidential information
connected with a breach is not further disclosed beyond its authorised scope of
access, and to respect those elements of the privacy of individual staff
members not relevant to the case.

5.2 The full report shall be treated as confidential, to be classified and
handled according to its sensitivity. It should be made available only to all
those who are directly involved in the investigation, including any individual
staff members implicated in a breach or alleged breach, and any State Party
making an allegation of a breach. In its modified form, the report may be made
available to any State Party upon request and it shall be summarised in the
annual report of the Director-General to the Conference concerning
confidentiality as required under paragraph 3 of the Confidentiality Annex.
Where possible, the report should, in both forms, contain concrete proposals
for the enhancement of the confidentiality regime. If the Director-General
requested the Executive Council to approve interim action in accordance with
subparagraphs 4.1, 4.3 or 4.4 of this Part, then he should report directly to
the Executive Council on the implementation of interim action.

5.3 When the report finds that there has been a breach of confidentiality,
there should be an account of the degree of severity of the breach, with
reference to the following factors:

(a) whether the breach occurred through deliberate or accidental steps, or
through negligent omission;

(b) whether the breach involved a violation of obligations under this Policy
and associated administrative directives, or of specific agreements such as a
staff secrecy agreement or a facility agreement;

(c) the degree of actual or potential damage, if any, to the interests of any
party concerned; and

(d) the degree of any private advantage gained through the unauthorised
disclosure or consequent misuse of information, in particular promoting
self-interest, competitive advantage, the benefit of a third party, or an
intention to damage a third party's interest.

5.4 If the State Party requesting an investigation is not satisfied with the
report issued by the Director-General following an investigation, and after all
reasonable attempts have been made to resolve the issue through consultations,
that State Party has the right to request that the Confidentiality Commission
be convened to consider the case.

5.5 If the investigation has not been completed within three months of the
initial decision to proceed, the Director-General should make an interim
progress report to those who receive the final report. This report should set
out the steps taken to that date, and any obstacles or reasons for delay in
completing the investigation. If, after consultations, it subsequently appears
that these obstacles or delays can not be expediently overcome, the
Director-General may conclude the investigation and in his report request that
the Confidentiality Commission be convened to consider the case in accordance
with paragraph 23 of the Confidentiality Annex.

5.6 If, on conclusion of the investigation, it is determined that a breach or
violation has not occurred, the Director-General's report should include a
statement exonerating the accused Secretariat staff member or State Party.

6. Step 4: Action in response to an investigation report

An investigation and report which finds that there has been a breach or
violation may lead to four broad categories of possible response:

(a) disciplinary actions internal to the Organisation and covering current
staff of the Secretariat, and sanctions covering former staff members;

(b) legal proceedings conducted under the national jurisdiction of a State
Party, following the waiver, when relevant, of any immunity from
jurisdiction;

(c) reform or enhancement of the OPCW confidentiality regime; and

(d) other action when a State Party appears responsible.

7. Step 4a: Disciplinary sanctions against serving Secretariat staff

7.1 If, on conclusion of the investigation, it is determined that a breach or
violation has been committed by a serving Secretariat staff member, the
Director-General shall apply proper disciplinary measures in accordance with
the OPCW Staff Regulations and Rules.

7.2 The severity of the breach and the degree of individual responsibility
should be weighed in determining which measures should apply to a staff
member.

7.3 The decision of the Director-General concerning disciplinary action may be
subject to review or appeal, in accordance with procedures established under
the OPCW Staff Regulations and Rules.

8. Step 4b: Sanctions against former Secretariat staff

If a breach or violation is determined within the report to have been
committed by a former member of staff of the Secretariat, the Director-General
may decide on the application of whatever measures may still be applied within
the terms of the OPCW Staff Regulations and Rules. This may include the loss of
pension rights acquired during service with the Organisation or the
cancellation of residual financial or other entitlements.

9. Step 4c: Action taken in relation to waiver of immunity

9.1 Separate from these disciplinary measures, the Director-General may decide
to waive immunity from prosecution. This applies both to currently serving
Secretariat staff members of the Secretariat, and to former staff members who
may retain immunity relating to actions taken during their term of service with
the Secretariat. Waiver of immunity is to be considered only in the event of a
serious breach, when individual responsibility has been established and damage
has been suffered as a result thereof, and should ensue in conjunction with
confidential consultations as to the possibilities of relevant national
jurisdiction being applied. The individual secrecy agreement signed by the
staff member should also be reviewed for its possible use in legal action.

9.2 Any decision to waive immunity may be subject to review or appeal in
accordance with the procedures established under the OPCW Staff Regulations and
Rules.

9.3 States Parties shall take appropriate legal action, to the extent possible,
in making an appropriate response to the waiver of immunity. The action to be
taken will be in accordance with Part IX.3 of this Policy below including
possible legal proceedings that may apply to the present or former staff member
whose immunity is waived. If the present or former staff member responsible
for a breach is residing or is otherwise within the jurisdiction of a State not
Party to the Convention, the Director-General may seek the authority of the
Executive Council or the Conference to undertake consultations with the aim of
encouraging that State to initiate or facilitate appropriate action to support
legal processes resulting from the breach.

10. Step 4d: Other legal action within national jurisdiction

10.1 If the investigation by the Director-General determines that a natural or
legal person (including a commercial entity) under the jurisdiction of a State
Party appears to have been responsible for a breach of confidentiality, has
derived particular advantage from a breach of confidentiality, or has otherwise
been involved in a breach of confidentiality, that State Party may be required
to take appropriate legal action in accordance with Part IX.3 of this Policy
below.

10.2 If a legal or natural person found responsible for a breach is residing or
is otherwise within the jurisdiction of a State not Party to the Convention,
the Director-General may seek the authority of the Executive Council or the
Conference to undertake consultations with the aim of encouraging that State to
initiate or facilitate appropriate action to support legal processes resulting
from the breach.

11. Step 4e: Action taken when a State Party appears responsible

11.1 If the investigation by the Director-General determines that a State
Party, including an official of a State Party, appears to have been responsible
for a breach of confidentiality:

(a) that State Party shall assist the Director-General to resolve the matter,
to the extent possible, including providing full details of its handling and
protection of confidential information supplied by the Organisation;

(b) that State Party shall take appropriate legal action in accordance with
Part IX.3 of this Policy below; and

(c) the Director-General may raise the matter with the Executive Council and
request further action in response to the investigation report.

11.2 A State Party's possible responsibility is to be assessed in the light of
its obligations under the Convention, particularly paragraph 6 of Article VII
and paragraph 4 of the Confidentiality Annex.

11.3 If an investigation finds that a State Party appears responsible for a
breach, the Confidentiality Commission may be convened in case of disputes to
consider the case in accordance with paragraph 23 of the Confidentiality Annex
and the detailed procedures established for the Confidentiality Commission.

11.4. Where the investigation discloses a breach of confidentiality involving
the interests and actions of States Parties only, the Director-General shall
inform the States Parties concerned of such an outcome.

12. Step 4f: Action to reform or enhance the confidentiality regime

12.1 The report of the investigation should contain concrete proposals
for the reform or enhancement of the protection of confidential information
within the Organisation, both specifically to prevent the recurrence of any
breach or violation established by the investigation, and on the basis of other
observations about the general protection of confidentiality which may emerge
from the investigation.

12.2 The Director-General should recommend to the Conference for adoption at
its next meeting any proposals for reform or enhancement of this Policy or
other basic policy documents that emerge from the investigation.

12.3 If the investigation demonstrates a need for improved handling and
protection procedures, or any other alteration of the working procedures of the
Secretariat, the Director-General shall issue appropriate administrative
directives to implement these changes without delay.

PART IX.2: RULES GOVERNING THE COMMISSION FOR THE SETTLEMENT OF DISPUTES
RELATED TO CONFIDENTIALITY ("THE CONFIDENTIALITY COMMISSION")

1. Rules governing the composition of the Confidentiality Commission

1.1 The Confidentiality Commission as a whole will be made up of persons
appointed in a personal capacity from a list of nominees put forward by States
Parties to the Convention. Each State Party may nominate one of its citizens
who is available and qualified to serve on the Confidentiality Commission.
This list of nominees will be submitted to the Conference and 20 persons shall
be appointed from it to serve on the Confidentiality Commission for an initial
two-year term.

1.2 The 20 appointees are to be determined through a process of consultation
with regional groups under the direction of the Chair of the Conference: these
consultations shall take into account the principle of rotation and the need
for a comprehensive spread of relevant fields of expertise, to result in the
designation of four nominees from each of the five regions defined in paragraph
23 of Article VIII of the Convention by the States Parties belonging to the
respective regions. Due appointment of these nominees to the Confidentiality
Commission shall then be taken by the Conference as a decision on a matter of
substance, in accordance with Article VIII, paragraph 18 of the Convention.

1.3 Nominees should be proposed by States Parties on the basis of individual
efficiency, competence, integrity and background in one or more fields relevant
to the work of the Confidentiality Commission, such as dispute resolution of
various types; the confidentiality and verification provisions of the
Convention; the chemical industry; military security; data security;
international law; and national legal systems.

1.4 The Confidentiality Commission as a whole shall meet for an inaugural
meeting during the course of the first Conference at which it shall, by
consensus, elect its Chair from amongst its members to serve for an initial
term of one year. Thereafter, the Confidentiality Commission shall hold a
regular annual meeting, in conjunction with the regular annual session of the
Conference, during which the Confidentiality Commission will elect its Chair
(`the Chair') for the coming year in accordance with the operating procedures
approved by the Conference.

2. Disputes the Confidentiality Commission may deal with

The Confidentiality Commission may be called upon to deal with disputes in the
following circumstances:

(a) when invoked to considerdisputes arising from a breach or breaches
of confidentiality involving both a State Party and the Organisation;

(b) when, in accordance with Article XIV, paragraph 4, of the Convention, the
Conference of the States Parties entrusts it with a dispute relating to
confidentiality other than a dispute such as those identified in subparagraph
2.(a) above; or

(c) when chosen by two States Parties in dispute over a matter of
confidentiality as a means of resolving their dispute pursuant to Article XIV,
paragraph 2 of the Convention.

3. Rules governing the operating procedures of the Confidentiality
Commission

These rules govern the detailed operating Procedures for the Confidentiality
Commission, which are to be approved by the Conference.

Commencement of the dispute resolution process

3.1 In the event of the Confidentiality Commission being called upon to deal
with a dispute in the circumstances set out in paragraph 2 above, the matter
will immediately be forwarded to the Chair, who shall in turn immediately
inform all members of the Confidentiality Commission about the case. The Chair
shall then consult with all members of the Confidentiality Commission on the
timing and process for resolving the dispute, including convening meetings as
necessary, in accordance with procedural guidelines in the operating procedures
which take into account such factors as indications of gravity or urgency on
the part of a disputing party, the complexity of substantive issues involved,
the scale of alleged loss or damage, and the need for minimising the scope of
further access to confidential information. At the conclusion of these
preliminary steps, the Chair shall obtain the agreement of the Confidentiality
Commission on a proposed timetable and a process for resolution for the
dispute.

Seeking a mutually agreeable resolution

3.2 The Confidentiality Commission shall initially aim at clarifying the basis
of the dispute and at resolving the dispute in a manner that is acceptable to
the disputing parties and that is consistent with the rights and obligations of
States Parties and the Organisation under the Convention. In making every
effort to encourage disputing parties towards a mutually satisfactory outcome,
the Confidentiality Commission should adopt a means of dispute resolution
appropriate to the case, which takes account of any common preference of the
disputing parties: for instance, the initial means adopted would preferably
comprise a mediation process practically geared to reaching an agreed
settlement through negotiation.

3.3 To this end, the Confidentiality Commission may form an advisory committee
to undertake informal mediation consultations; normally this advisory committee
should be composed of five Confidentiality Commission members, one from each
region, unless the disputing parties agree to request a similar, modified
structure which they believe would serve better to reach a mediated resolution.
Any such committee must report to the Confidentiality Commission on the
progress and result of any consultations, and any possible mediated resolution
derived from this process must be put to the Confidentiality Commission to be
certified.

3.4 If, by any appropriate means, the Confidentiality Commission reaches a
mediated resolution of the dispute acceptable to the disputing parties, this
outcome shall be certified by the Confidentiality Commission and a factual
statement on the outcome shall be provided to the disputing parties for their
agreement to be recorded.

Absence of mutually acceptable resolution

3.5 If no such outcome can be reached, the Confidentiality Commission shall
prepare a report outlining the basic facts of the dispute, commenting
objectively upon the dispute and recommending further action that might be
taken to resolve it, by the disputing parties themselves, by the
Confidentiality Commission, by the Conference, or by another organ of the
Organisation, in accordance with a specific mandate from the Conference. This
report shall be passed by the Confidentiality Commission to the disputing
parties. The report and recommendations of the Confidentiality Commission
shall not be binding on the disputing parties, but may provide a basis or
rationale for further action on the part of the disputing parties or competent
organs of the Organisation: in particular, the Confidentiality Commission may
refer the matter to the Conference, or to another organ of the Organisation in
accordance with a specific mandate from the Conference and if the disputing
parties concur that this is necessary due to the urgency of the case.

3.6 If two disputing States Parties agree as a condition of referring a dispute
to the Confidentiality Commission, the Confidentiality Commission may, with the
explicit consent of the disputing parties, decide on an arbitrated resolution
to the dispute which is binding on the disputing parties.

3.7 In preparing its reports and recommendations, the Confidentiality
Commission shall take into account the need-to-know principle governing access
to confidential information and the specific procedures adopted by the
Confidentiality Commission to ensure that confidentiality remains protected in
the exercise of its functions. Confidentiality Commission members shall
themselves be bound by all obligations under the Convention and this Policy in
relation to handling and protection of confidential information.

Reporting to the Conference

3.8 The Confidentiality Commission shall remain responsible to the Conference,
and shall report on its activities in the preceding year at every regular
session of the Conference. This report shall include the number of mediated
and arbitrated resolutions reached, the categories of disputes considered, the
outcomes reached, and details of the outcomes consistent with the continuing
protection of confidentiality. The Confidentiality Commission shall also
report on its general operations, as well as on its effectiveness and
efficiency, and may make proposals or recommendations for its improvement.

Responsibilities of Confidentiality Commission members

3.9 The Confidentiality Commission, and its members individually, shall act
without interference or direction from either the Secretariat or other organs
of the Organisation, but must follow any mandate of the Conference. The Chair
may, however, seek and receive conference and logistical support and assistance
from the Secretariat in the exercise of his functions. Confidentiality
Commission members with a conflict of interest in relation to a particular
dispute shall refrain from dealing with that dispute; it is the responsibility
of individual Confidentiality Commission members to declare any conflict of
interest as soon as any dispute is notified. Confidentiality Commission
members shall neither exercise any other office within the Organisation or its
organs, nor maintain any legal or financial relationship or interest linked to
the Organisation.

Meetings of the Confidentiality Commission

3.10 The Confidentiality Commission shall meet initially and in conjunction
with regular sessions of the Conference in accordance with subparagraph 1.4 of
this Part, and shall also meet as necessary to consider disputes brought before
it.

3.11 At its initial and subsequent annual meetings, the Confidentiality
Commission shall:

(a) choose by consensus a Chair to serve for the forthcoming year taking into
account the principle of rotation among the regions designated in paragraph 23
of Article VIII of the Convention;

(b) consider and adopt a report to the Conference as to the outcome of disputes
handled by the Confidentiality Commission during the previous year;

(c) consider and adopt a report to the Conference on the operation,
effectiveness and efficiency of the Confidentiality Commission and consider any
recommendations or proposals made by the Chair in this regard;

(d) as necessary, review and recommend any amendment to its operating
procedures;

(e) issue such guidelines to or make such requests of the Chair as it sees fit;
and

(f) make such further recommendations or proposals to the Conference as it sees
fit.

(a) by what formal process meetings of the Confidentiality Commission are to be
convened;

(b) how disputes are to be immediately forwarded to the Chair, and how the
Chair is to inform all Confidentiality Commission members immediately;

(c) how the Confidentiality Commission is to decide on the timing and process
of dispute resolution in accordance with subparagraph 3.1 of this Part;

(d) how the Confidentiality Commission is to certify a mutually agreed
resolution of a dispute, and how the agreement of disputing parties to such
resolution of a dispute is to be registered;

(e) procedures for preparation and submission of reports and recommendations by
the Confidentiality Commission to disputing parties and to the Conference or to
another organ of the Organisation in accordance with the Conference's
authority;

(f) a procedure to ensure that confidentiality remains protected in the
exercise by the Confidentiality Commission of its functions, consistent with
the Confidentiality Annex, the OPCW Policy on Confidentiality and the
need-to-know principle governing access to confidential information;

(g) a procedure for the imposition of time-limits within which Confidentiality
Commission functions must be exercised;

(h) procedures for the election of successive Chairs, for the election of
successive members to the Confidentiality Commission, and for the filling of
any casual vacancies taking into account the principles established in
subparagraphs 1.1, 1.2 and 1.3 of this Part;

(i) in respect of those Confidentiality Commission members currently
considering a particular dispute, a mechanism for facilitating continuity of
their service throughout the dispute resolution process, consistent with and
subordinate to the principles of the rules governing composition set out in
paragraph 1 of this Part;

(j) a procedure by which the Confidentiality Commission's efficiency shall be
monitored; and

(k) a procedure for amendment of these operating procedures.

Decision-making procedure

3.13 The Chair shall seek consensus on any decision or recommendation before
the Confidentiality Commission as a whole but, in the event that consensus
cannot be reached on a particular decision, the Confidentiality Commission may
resolve the matter by two-thirds majority of all its members.

PART IX.3: THE ROLE OF STATES PARTIES IN RELATION TO BREACH PROCEDURES

1. Introduction: relevant Convention obligations

1.1 Provisions of the Convention which specifically relate to States Parties'
involvement in the protection of confidentiality include the obligations on
individual States Parties to:

(a) to the extent possible, cooperate with and support the Director-General in
investigating any breach or alleged breach of confidentiality and in taking
appropriate action in case a breach has been established (paragraph 21,
Confidentiality Annex);

(b) treat as confidential and afford special handling to information and data
received in confidence from the Organisation in connection with the
implementation of the Convention, and to treat such information and data
exclusively in connection with rights and obligations under the Convention, and
in accordance with the provisions of the Confidentiality Annex (Article VII,
6);

(c) treat information received from the Organisation in accordance with the
level of confidentiality established for it (Confidentiality Annex, paragraph
4); and

(d) provide upon request details on the handling of confidential information
provided to them by the Organisation (Confidentiality Annex, paragraph 4).

1.2 In addition, implementation of the provision for waiver of immunity
established in paragraph 20 of the Confidentiality Annex would mean that a
relevant national jurisdiction would need to apply in the event that a
Secretariat staff member committed a serious breach of confidentiality.

1.3 As this Policy deals with the operations of the Organisation itself and its
relationship with States Parties, this Part does not establish or prescribe
specific internal State Party measures that may be undertaken in pursuance of
the objectives of the Convention in relation to confidentiality, or for the
implementation of specific States Parties' responsibilities in this regard such
as the application of national jurisdiction or the provision of compensation in
the event of a breach. If necessary or desirable in particular cases, such
specific internal State Party measures or specific responsibilities of States
Parties might also be referred to and further developed in bilateral agreements
or other implementation arrangements between the Organisation and States
Parties.

2. Possible scenarios

A State Party's obligations concerning confidentiality could arise in a number
of practical scenarios, in particular in relation to:

(a) an OPCW investigation into a breach or alleged breach of confidentiality;

(b) the waiver of immunity by the OPCW Director-General in the event of a
serious breach of confidentiality;

(c) a breach of confidentiality for which a State Party is directly
responsible; or

(d) a breach of confidentiality by a legal or natural person in the
jurisdiction of a State Party.

3. Investigation of breaches of confidentiality

In addition to the general requirement under Article VII, paragraph 7 of the
Convention to provide assistance to the Secretariat, each State Party has a
particular obligation in relation to the investigation by the Director-General
of a breach or alleged breach of confidentiality (as noted in subparagraph
1.1(a) of this Part). Within the framework of these obligations, the nature
of support and cooperation by States Parties in relation to any particular
investigation is to be determined on a case-by-case basis.

4. Waiver of immunity in the case of a serious breach of
confidentiality

4.1 The Convention (Confidentiality Annex, paragraphs 20 and 21) presumes that
jurisdiction should apply in the event of immunity from jurisdiction being
waived in respect of a staff member of the Technical Secretariat who has
committed a serious breach of confidentiality. If the Director-General decides
to waive immunity in such a case, legal proceedings under an applicable
jurisdiction of a State Party should be instituted against such a staff member
on the basis of the request of the Director-General or a State Party affected
by the serious breach. States Parties should take any appropriate
administrative and legal measures to ensure that this mechanism can be
effectively implemented.

4.2 It will remain the primary responsibility of States Parties to determine
the applicability of national jurisdiction on a case-by-case basis. The
Conference may also consider proposals for an arrangement that would ensure a
consistent and comprehensive response to any serious breach of confidentiality
obligations by Secretariat staff members.

5. Breaches imputed to a State Party

If information provided in confidence by the Organisation to a State Party is
disclosed to unauthorised recipients or if confidentiality is otherwise abused
by that State Party, then this would run contrary to the obligations upon
States Parties established under Article VII, paragraph 6 of the Convention and
under the Confidentiality Annex, paragraph 4. Treatment as confidential of
information received in confidence is, moreover, an essential part of the
effective operation of the Convention as a whole. In such a case, a breach of
confidentiality may be imputed to the State Party in question, as contravening
these obligations. This may arise as a finding of an investigation by the
Director-General into a breach or alleged breach[14], in which case the matter would be subject to
the Convention's dispute resolution mechanisms, and in particular to the
Confidentiality Commission[15] under the
authority of the Conference.

6. Other application of national jurisdiction

As noted in paragraph 5 above, a State Party's disclosure of information,
having been provided by the Organisation in confidence, in such a way as to
breach its confidentiality would run contrary to the obligations upon States
Parties established under Article VII, paragraph 6 of the Convention and under
the Confidentiality Annex, paragraph 4. States Parties are therefore required
to take appropriate administrative and legal measures they judge to be
necessary to ensure that these obligations are effectively met, including by
any agents acting with their authority or sponsorship.

PART X

ANNUAL REPORT ON THE IMPLEMENTATION OF THE REGIME GOVERNING THE HANDLING OF
CONFIDENTIAL INFORMATION BY THE SECRETARIAT

1. The Director-General is required to report annually to the Conference
on the implementation of the regime governing the handling of confidential
information by the Secretariat (Confidentiality Annex, paragraph 3). The
points identified below should be covered in the report, but in such a way as
to preclude any diminution of the confidentiality of any confidential
information disclosed to, handled by or held in the Secretariat, and governed
by the principles of this Policy

2. The Director-General shall focus in his report on practical details of the
handling of confidential information by staff members of the Secretariat (CA,
paragraph 3) in the preceding year, including:

2.1 resource requirements for implementing the confidentiality regime,
including an estimate of the volume of confidential information handled by the
Secretariat;

2.2 important actions taken to implement the confidentiality regime, including
significant changes in procedures or personnel, and staff training and
awareness programmes to ensure compliance of Secretariat staff with the
regime;

2.3 breaches or alleged breaches and the actions taken to investigate and
redress them; and

2.4 problems or policy issues that have arisen with respect to the
confidentiality regime.

3. While not limiting the scope of the report, it should in particular
cover the following detailed elements:

3.1 the estimated number of items of confidential information received,
generated, stored and disseminated by the Secretariat;

3.2 the number, recipients and description of release[16] of items of confidential information made
during the previous year, and access granted to authorised recipients
associated with the Organisation[17];

3.3 the number of clearances granted for access to confidential information in
accordance with paragraph 11 of the Confidentiality Annex, and any changes in
senior staff positions concerned with the implementation of the confidentiality
regime;

3.4 resource and operational requirements and general policy issues arising
from confidentiality procedures in the course of verification activities and in
the IMS;

3.5 any changes that have been made in administrative directives established to
implement this Policy, including any changes to administrative directives that
have been made necessary by the Conference's approval of amendments to this
Policy;

3.6 any reported loss of confidential information;

3.7 any breaches or alleged breaches involving staff members of the
Secretariat, breach investigations conducted by the Director-General, and
consequent actions taken;

3.8 any changes in the IMS which have substantial implications for the security
of confidential information contained in the system;

3.9 the conduct of staff training and awareness programmes about the obligation
to protect confidential information and to abide by the confidentiality regime,
and the provision of instruction, advice and regular reminders to all staff
members of the Secretariat about the principles of this Policy and the
procedures required to implement it, as well as about the principles and
procedures relating to security, and the possible penalties that staff members
would incur in the event of improper disclosure of confidential information;
and

3.10 the number of items of confidential information to which authorised
recipients associated with the Organisation were granted access in accordance
with the principles set out in subparagraph 2.12 of Part VI of this Policy.

PART XI

AMENDMENT PROCEDURE

1. Any State Party or the Director-General may propose amendments to this
Policy. Any proposed amendments shall be forwarded by the Director-General,
through the Executive Council, to the Conference of the States Parties for its
consideration and approval in accordance with its rules of procedure.

2. The Director-General shall, without delay, issue any changes to
administrative directives that are made necessary by the Conference's approval
of amendments to this Policy, and shall report on any such changes to the
Executive Council and to the Conference in the annual report on the
confidentiality regime.